Choosing the right witnesses is essential to ensuring the integrity of your last will or revocable living trust. Under most states' guidelines dealing with proper will execution, at least two witnesses must sign the will for the will to be valid. The Uniform Probate states that “an individual generally competent to be a witness may act as a witness under a will” (UPC Section 2-505). Not all witnesses are created equal, however. In choosing your all-star witness cast, you'll want to pick witnesses who :
• Qualify as "disinterested witnesses"
• Have sound mind and memory
• Write legibly
Disinterested Witnesses
Whenever possible, you should choose disinterested witnesses to sign your Will. A disinterested witness is someone who does not have any family or strong personal connections to you, and who is not a beneficiary or fiduciary named in your will. Since disinterested witnesses do not reasonably stand to inherit anything under your will, the Court is more likely to accept their attestation that you met the requirements for proper execution of your will.
If you instead choose one or more people with interest to witness your will, your will likely can still be ruled valid. However, gifts made to that interested person in the will may be impacted.
In New York, Texas, and Connecticut, for example, an interested person signing as witness may be entitled to some portion of the gifts that they were given under the Will, but that portion is usually capped at the amount that they would have received in intestacy.
To cover your bases and ensure that your beneficiaries are able to receive the correct amount that you've allocated to them, choose disinterested witnesses.
Witnesses with Sound Mind and Memory
If your will was not made self-proved, one or more of your witnesses may be called to testify to the Court years after the will’s execution detailing how you and the witnesses followed the necessary requirements and procedures for valid execution. Your witnesses don’t need to know what you had for breakfast that morning, but they should have sufficient presence of mind to generally recall that you looked, felt, and by all observable accounts acted as yourself that day.
Many estate planning attorneys who supervise the will signing ceremony for their clients write and file a memo documenting the questions and methods through which they concluded the client had the requisite capacity and understanding of their action of making the will. If you are not making your will with an attorney, you may ask your witnesses to record their own informal memo with similar notes regarding the signing ceremony.
Witnesses who Write Legibly
If your Will is challenged or not made self-proved, your Executor and/or estate planning attorney may need to contact the witnesses to secure their attestation and/or appearance in Court. If your Executor can't read their name and address because your witnesses’ handwriting is poor, that's a problem!
Instruct your witnesses to print their name and address legibly and carefully, or do it for them and have them just sign their name.
Summary
Selecting qualified, disinterested witnesses for your last will signing ceremony helps ensure that your will meets your state’s execution requirements and your beneficiaries receive all that you wish to allocate to them.
