Is My Father’s Will Valid Despite Lack of Witnesses?

 In Wills

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Question:

My dad passed away last September and my 2 step sisters and I are headed to Probate Court due to the estate being over $ 100,000. My dad has a Will, but it is not valid due to the fact of not having the 2 witness signatures (only his signature ). Can that Will be used in court or have any legal standing?

Response:

On the surface, no. The will does not satisfy the requirements to be valid. However, the more modern approach as expressed in the Uniform Probate Code is to accept such wills with proof of the testator’s intent that the document be a will. Many states have adopted some form of the Uniform Probate Code’s expanded definition of what may constitute a will. It includes the following language:

Although a document or writing added upon a document was not executed in compliance with [the will definition], the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: . . . the decedent’s will;

So, if you take a look at your state’s will statute, you can see if it includes a similar provision. If so, your father’s will may be considered valid despite the absence of witnesses. However, you may need a court hearing in order for it to determine the validity of the will. It won’t be pro forma as with a standard will.

Sometimes wills that do not fit the standard definition are referred to as “holographic” wills, though sometimes that term is used to refer to handwritten as opposed to typed out wills.

 

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Showing 4 comments
  • Laura E.
    Reply

    I helped a friend obtain a Summary Administration (streamlined probate for estate under $75,000 in FL) in order for him to get a mutual fund transferred to him by Vanguard after his mother died. She had a written will prepared by an attorney but it was not initially accepted by the Court because, although her signature had been witnessed, the correct info about how the identities of the witnesses was verified was not included. Good grief! The law firm had to submit a form to the court (at their cost, of course) that verified it was his mom’s signature.

    It took several rounds of me submitting/resubmitting corrected paperwork but luckily he only had to pay the filing fee once. I could look online to see what was accepted and what I had to fix (for him) and then this issue with the will popped up at the last minute. The pandemic was also beneficial because the Court emailed a PDF package of the required forms. Normally, you would have to go to the probate office to dig them out for yourself.

    The whole process took about 4 weeks and was quite the adventure but it saved my friend’s son about $2,000.

      • Harry Margolis
        Reply

        Laura,
        Good work! Unfortunately, probate court’s often make things more cumbersome than they need to be. A silver lining of the pandemic is that it’s force the courts and many law practices, ours included, to move into the 21st century in terms of working virtually and doing more on-line. For example, it’s a lot easier, efficient, and cost effective for the client to attend court hearings by Zoom than having to travel to court and sometimes wait hours for your case to be called before the judge.

      • Laura E.
        Reply

        It seems Zoom court appearances are much fairer for working stiffs who can’t take a whole day off to participate in a hearing and easier for those who don’t have readily available transportation. Zoom doctor’s appointments have been wonderful for my elderly neighbor. I help her with the IT part of things and the whole follow-up appointment (blood test,imaging) takes a max of 20 minutes. So much faster, more efficient, and safer. Will be much safer during normal flu season in the future. And I love not having to drive back and forth to the yoga studio!

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