Is Your Will Properly Signed and Witnessed?

08/24/2015 10:13 am ET Updated Aug 24, 2016

To "execute a will" means to sign it in a manner that is legally binding according to the provisions of the testator's (person making the will) state statute. The historical model for U.S. legislation was the English "Statute of Wills," enacted by Parliament in 1540. The Statute of Wills allowed the transfer of land ownership at death, limited royal control, and created the typical modern two witnesses requirement for creating a valid will. A recent Tennessee state court decision determined that a will was invalid because it was not properly executed (In Re Estate of Bill Morris). This comment briefly reviews the Morris decision. Consult an experienced attorney in all will and estate matters.

In a brief and incomplete factual overview, a child of Bill Morris challenged in court the validity of his parent's will. Bill Morris signed his written will properly at the end of the document. However, Tennessee state law, as is typical, additionally requires the signatures on the will itself of two witnesses who do so in the presence of the testator and each other. Tennessee state law allows, but does not require, a notarized "self-proving affidavit" that is signed by the witnesses and attached to the will. A self-proving affidavit is essentially a form of sworn testimony concerning the facts of the testator's will signing that allows the will to be admitted to probate without the witnesses being required to physically appear and testify in court. Most states allow a "self-proving affidavit." The problem with Morris's will was that the witnesses signed the self-proving affidavit but not the will document itself. In other words, the witnesses should have signed twice; both the will itself and the self-proving affidavit.

The Tennessee Court held, quoting prior cases, that the state statute "clearly and unmistakably requires attesting witnesses to sign the will in the presence of the testator and in the presence of each other." The Court was unwilling to combine the affidavit and will (integration) in a manner that would allow the one signature to become a part of the will. Consequently, Bill Morris died without a valid will (intestate).

The Morris decision illustrates a requirement of "strict compliance" with will execution requirements. Some states allow "substantial compliance" and would, under the facts of the Morris case, determine the will to be valid. Substantial compliance is a modern trend; however, state law varies concerning how a valid will is created and one should consult an experienced attorney in a given jurisdiction. For example, simply printing a form and signing it without witnesses is likely not a valid will. While some states recognize a holographic (handwritten) will that is entirely in the handwriting of the testator and signed by her or him, a printed form would not meet these requirements. In like manner, an unsigned handwritten document would not qualify as a will.

Historically and possibly currently in some states, witnesses must hear the testator orally declare that the document that they are witnessing is the testator's will (publication requirement). Additionally, state law may require that the witnesses not inherit any property under the provisions of the will. Witnesses may be required to be above a specified age (14 is typical). Of course, the testator also must be an adult with testamentary capacity (the mental ability to make a will). A very few states may require that three witnesses sign the will. Witnesses typically do not read the will as their focus is on the testator's signature.

Some states allow the testator to sign prior to the witnesses and outside of their presence if the testator states to the witnesses when they sign that the document is her or his will. However, a statement made via a telephone call is likely insufficient. The testator and witnesses must be physically together. Other states may mandate that the testator and witnesses all sign at the same time. Conventional wisdom says that the testator, and possibly the witnesses also, should initial each page of the will to reduce a potential assertion that a page has been switched. However, this is not a legal requirement. Some commentators also suggest that the entire will signing ceremony be recorded on video as an additional source of evidence concerning the mental state and competency of the testator. This is not legally required and a testator should consult her or his attorney.

Public policy favors carrying out a competent testator's wishes but under a procedure that reduces the possibility of fraud, duress, or forgery. The required execution procedures additionally impress upon the testator and witnesses that the document is a "will" and not a statement of possible wishes or random thoughts.

If a testator fears that the will might be wrongfully destroyed, it may be possible to leave the signed original with a trusted attorney or place it in a safety deposit box that will have limited access. Recording the will in the public records at a county clerk's office might also be possible if the signatures are notarized. Typically the signatures on the will itself are not notarized. Consult experienced legal counsel. On the other hand, when preparing a new will that is intended to replace an older will, it is a good practice to mention the older will by its date of execution and indicate that it is revoked. This step, while not legally required, avoids confusion concerning the status and validity of the older document.

This comment briefly reviews a single significant court decision and is not intended to provide legal advice. Always consult an experienced attorney in all will and estate matters.