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Ensuring Your Will Is Properly Witnessed

When you make a Last Will and Testament, California law normally requires you sign it in the presence of at least two witnesses, who must also sign the will. It’s not necessary for the witnesses to read the will or understand its contents, only that you declare the document that you are signing to be your Last Will and Testament. A will that is not properly witnesses may be contested or challenged in court by your heirs.

But that’s not to say that a court will simply throw out your will if there aren’t two witnesses. Just recently a California appeals court considered a case where a will had only one witness. The deceased, Norminel Reese, had previously given his estate planning lawyer handwritten instructions on how he wished to dispose of his assets after his death. The attorney prepared a will that was then signed by Reese in the presence of a single witness, his girlfriend at the time. She was not a beneficiary under the will.

A Contested Will Divides Siblings
Reese named his daughter Michelle Reese as executor of the will and sent her the original for safekeeping. Michelle was also the principal beneficiary of the will. After Reese’s death, she filed the will for probate. One of Michelle’s brothers objected. He claimed the will was not an accurate statement of their father’s intentions. The brother wanted the will invalidated. In that case, Reese’s property would be distributed according to California’s intestacy law, meaning all of Reese’s children would equally share in the estate. The will, however, provided only a small inheritance for the son and left most of the estate to Michelle.

A trial court was forced to hear testimony and determine whether Reese’s will should be admitted to probate. The judge ultimately found the will was an accurate reflection of Reese’s last wishes. The court took into account the testimony of Reese’s former girlfriend, who witnesses Reese making handwritten instructions to his attorney, as well as the son’s lack of persuasiveness in his own testimony. Ultimately, the court said that the poor drafting of the will–the lack of a second witness–did not overcome all of the evidence that Reese signed this document and sent it to his daughter as a Last Will and Testament rather than a draft.

The Aftermath
The appeals court agreed with the trial court that there was more than enough evidence to support admitting the will. That court denied the son’s appeal. This opinion was ordered not to be published, meaning that it cannot be relied on as a statement of the law; however it is still illustrative of the problems relating to the drafting of estate planning documents.

This may end the legal fighting among the Resse siblings, but it should serve as a lesson to anyone looking to avoid fights among their children and loved ones after their death. Had Reese and his attorney taken the time to locate a second witness, many years of litigation could have been avoided. The whole point of the two-witness rule is to ensure a will can be admitted to probate quickly and, in most cases, without the need for a formal court proceeding.

To avoid the same fate, it’s important you hire a qualified estate planning attorney. Contact the Law Offices of Scott Soady for assistance in drafting a will and other estate planning documents that can help your loved ones avoid the stress and uncertainty of litigation after your death.

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The Challenge of Contesting a Will
Why Wills & Trusts May be Found Invalid

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