Beyond The Will

Requirements of a Will in Form and Execution

March 5, 2020

 

Editors’ Note: Starting in March, Beyond the Will will focus on one broad topic each month. Each week, a different author will post a new insight on the matter. Our posts in March will investigate the grounds for challenging a will, trust, lifetime transfer, or beneficiary designation.

Your sister recently died at the age of 28 as a resident of Massachusetts, unmarried and with no children.  In going through her apartment you discover a hand-written document purporting to be your sister’s Will dated five years prior that leaves “everything [she] own[s]” to her (now ex) boyfriend.  The document is signed and dated by her.  Is this document a valid Will?  Is your sister’s ex-boyfriend entitled to everything she owned at the time of her death?  Note that your sister and her ex-boyfriend remained good friends up until her death.  Does this matter?

As previously discussed, a Will directs the disposition of probate assets.  A Will does not direct the disposition of jointly held property, transfer on death accounts or other property with a beneficiary designation such as life insurance policies or retirement accounts (unless the beneficiary is an individual’s estate).

The Massachusetts Uniform Probate Code (“MUPC”) addresses the requirements for an individual (i.e. testator) creating a Will and the requirements for execution of the document.  The requirements for the testator will be addressed in a future post.

Massachusetts General Laws, Chapter 190B, Section 2-502 sets forth the requirements for Will execution.  In particular, a Will executed in Massachusetts must be: (1) in writing; (2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction; and (3) signed by at least two individuals, each of whom witnessed either the signing of the Will by the testator or the testator’s acknowledgment of the signature or acknowledgment of the Will.

Although a testator will ideally sign his name in full, a mark or cross serving as a signature is acceptable if the testator is too weak or ill to sign his full name.

Witnesses must be competent individuals and should not be interested parties (i.e. should not receive a bequest under the Will and should not be the spouse of an individual receiving a bequest under the Will).  In the event that an interested party does serve as a witness, the bequest to the interested party is void unless the interested party can establish that the bequest was not inserted and that the Will was not signed as a result of fraud or undue influence, or there are two additional witnesses who are not benefitting under the Will.

Although the MUPC sets forth the requirements for execution of a Will, there are best practices that extend beyond the statutory requirements.  For example, although not required, it is strongly recommended that an experienced attorney supervise a Will execution.  Additionally, although the witnesses to the Will technically do not need to witness the execution of the Will (as provided in (3) above so long as the testator acknowledges his signature to the witnesses or acknowledges the Will itself) it is by far best practice to sign and date a Will in the presence of two witnesses and have the two witnesses sign at the same time.  Further, the witnesses should be wholly disinterested parties.  In addition, it is strongly recommended that the testator, at a minimum (and frequently both witnesses), initial each page of the Will to minimize the likelihood of future page substitution.  Finally, a Notary Public should notarize the Will.

Going back to our opening example, is your sister’s handwritten disposition of her assets to her ex-boyfriend valid under Massachusetts law? Will he received everything your sister owned at her death if this document is presented to the Probate Court as your sister’s Will?  Likely no. First, as discussed above, assets with a beneficiary designation (life insurance policies, retirement accounts) and transfer on death accounts will pass to the named beneficiary and not through the Will.  Unless your sister’s ex-boyfriend is the named beneficiary of these assets he should not be entitled to receive them.  Further, the document signed by your sister fails to meet the statutory requirements for a Will.  There is no evidence that two witnesses (or any witnesses for that matter) witnessed the signing of the document or subsequently signed the document after your sister acknowledged that she had signed the document to them or acknowledged the document was her Will.  In this case, it appears that your sister’s probate assets will pass through the laws of intestacy.

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