Sometimes it’s easy for an estate planning attorney to forget that signing a will can be a complicated process. We supervise people signing their will frequently. But, all too often, wills are not executed with the proper formalities. A recent story of a case in Minneapolis reminds us of that.
In Minnesota, as in many states, two witnesses are required. They must see the testator sign in their presence and in the presence of each other. In the case, the client had her will notarized and witnessed by the notary, but no other witness. Thus, only one person witnessed her execution of the will. Evidently, the notary was unaware of the requirements for a will in Minnesota. As a result, the will did not have the required formalities in Minnesota.
This case underscores why it is best to have clients sign documents in your office. It may seem simple and it is…to an estate planning attorney. But, a client often does not understand why having their signature notarized is not sufficient. “Why can’t I just have the document notarized?” The formalities are what they are. If the client does not sign the will or other documents in the proper manner, the will or other document will not be effective to achieve the client’s goals.
If the client signs the document in your office, you can make sure that the formalities are followed to the letter. You can make sure that the client declares the document to be their will and that the proper number of witnesses are present when the client signs the will, etc.
It seems like a simple thing. However, all too often documents are not signed with the proper formalities which can result in the client’s wishes not being carried out….and possibly a malpractice suit for the attorney.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (800) 846-1555
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