We are often hired to review Wills drafted by other attorneys (or by clients themselves) to ensure that the Wills are valid. In many cases these are situations where the client has disinherited a child or left his or her estate in unequal percentages to his or her children. Unfortunately, there are times when we have to inform these clients that their Will, which they no doubt paid good money for, is not valid. This is never good news.
One issue that we are seeing on a regular basis is an improperly executed Will. Although the Will may be drafted (written) appropriately, it was not executed properly when it was signed. Most people do not realize that the execution of the Will is just as important as what the Will itself says. In fact, a beautifully drafted Will is completely invalid and worthless if it is not properly executed. When I refer to “execution” of the Will, I am referring to the process which occurs when the testator (the person whose Will it is) signs the Will and all of the formalities which must occur during this signing process (and there are many formalities).
The Tennessee Court of Appeals recently released a case, In re Estate of Morris, No. M201400874COAR3CV, 2015 WL 557970, at *4 (Tenn. Ct. App. Feb. 9, 2015), where a Will was disregarded because it was not executed properly. One of the several requirements for a properly executed Will is that the signing of the Will is witnessed by two independent witnesses and that the witnesses each sign the Will itself. In this case, attached to the Will was a separate “Self-Proving Affidavit” (which is a very common document to be attached to a Will and which is designed to assist in establishing that the Will was properly executed). The witnesses to this Will actually signed the Affidavit and not the Will itself. As I mentioned above, the Will itself must be signed by the witnesses. Unfortunately, the result in this case was that the Judge had no choice but to disregard the Will; it was not properly executed and was therefore invalid! This seems to be a minor discrepancy, perhaps one that the Judge could overlook, but Judges are required to strictly follow the law when it comes to establishing the proper execution of a Will.
Your take-away from this case is that it is extremely important that you hire a competent attorney to assist you in drafting (and executing) your Will. You don’t want an attorney who is not well-educated in this particular area of the law (that attorney may not understand the very technical requirements for a valid Will), and you certainly don’t want to attempt to draft your Will yourself. Also, just as important as the drafting of your Will is the execution of it; this is not something you want to take into your own hands…leave it to the professionals!
If you do find yourself with a Will that you question or that you know was not properly executed, the good news is that we can almost always fix it! As long as the testator is still alive and is competent (a topic I’ll leave for another day), we can draft a new Will and make sure that this new Will is properly executed. Also, it is a good idea to review your Will with an attorney every five years or so, because a lot can change in just a few short years and your Will may need to be updated or improved. It may be time for a review of your Will anyway.