A few days ago Judge Primeaux included a post on his blog regarding the The Role of the Subscribing Witnesses to as will spurred on by a Mississippi Supreme Court decision. In that case “The two subscribing witnesses were called to testify, and their testimony established that: they did not know they were witnessing a will; that the testator did not request that they witness a will; and that they did not satisfy themselves that the testator was of sound and disposing mind when she executed the will.” The court reversed the chancellor’s decision admitting the will, holding that the subscribing witnesses did not satisfy the requirement of “attesting” witnesses. The court’s opinion noted, “These formalities associated with attesting a will are important, not only as safeguards against fraud by substitution of a different will than the one signed by the testator, but also to make sure a person executing a will is of sound and disposing mind.”
Judge Primeaux states, “I would say that most of us who have ever prepared simple wills as a routine matter for clients have not paid heed to the exacting requirements that are imposed on subscribing witnesses by operation of the case law in this area. But, as this case illustrates, it is worth re-examining how you select and instruct your subscribing/attesting witnesses as to their duties, and, more importantly, how you document what it is that they are witnessing. By that latter point, I mean to suggest that you might want to scrutinize that subscribing witness affidavit form that is fossilized in your computer and which you have been using for more than 35 years, to see whether it is stout enough to pass muster in a trial of this sort, and whether it would help jog the memory of the witness to the extent that the witness’s testimony would be helpful.”
The judge is right, but in many law offices it will not be the attorney who sees that this gets done. As I discuss in great detail in The Empowered Paralegal: Working with the Elder Client a good paralegal will see that the a statutory requirements are met. Create and use detailed checklists for every step in every legal proceeding. Break enabling statutes such as those that enable people to make wills down into their elements. The break down can then be used as a checklist. Supplement with requirements interpreted or added by court opinions. The court in this case noted
Mississippi law empowers “[e]very person eighteen (18) years of age or older, being of sound and disposing mind” to make a will which, if not “wholly written and subscribed” by the testator, must be “attested by two (2) or more credible witnesses in the presence of the testator or testatrix [MCA 91-5-1]. The attesting witnesses must meet four requirements: First, the testator must request them to attest the will [Green v. Pearson, 145 Miss. 23, 110 So. 862, 864 (1927)]; second, they must see the testator sign the will [Matter of Jefferson's Will, 349 So.3d 1032, 1036 (Miss. 1977)]; third, they must know that the document is the testator’s last will and testament [Estate of Griffith v. Griffith, 20 So.2d 1190, 1194 (Miss. 2010)]; and finally, they must satisfy themselves that the testator is of sound and disposing mind and capable of making a will [Matter of Jefferson's Will, Id.].
This provides a good basis for a checklist:
a. eighteen (18) years of age or older
b. of sound and disposing mind (document file)
2. Subscribing witness
a. two or more
b. credibile (document file)
c. in presence of testator or testatrix
d. requested by testator to attest the will
e. see the testator sign the will
f. know that the document is the testator’s last will and testament
g. satisfy themselves that the testator is
i. of sound and disposing mind and
ii. capable of making a will
If each item on the checklist is documented at the time of the execution of the document and the checklist is kept in the file, not only can all be assured that the requirements are met, but there will be a record that can be used to prove the requirements were met in the event of a hearing many years later.
Note 1: Most states have a provision for “Self-proving Wills” that ought to be part of every will execution.
Note 2: Judge Primeaux’s blog is just chock full of helpful checklists for most proceedings that take place in equity courts regardless of their name in your jurisdiction, e.g., probate court, family court. It is important, however, to adapt those checklists to the statutes, rules, and other applicable law for your jurisdiction.