Thursday, May 6, 2010

Witnesses to a Will

In Massachusetts, for a Will to be valid, it must be in writing, signed by an individual eighteen years of age or older and of sound mind, and attested and subscribed in his presence by two or more competent and independent witnesses and a notary public. Does this mean the witnesses must be physically present at the time the testator’s signature is affixed to the instrument? According to a recent Massachusetts Appeals Court decision, the answer is no. In the case of Jones v. Ouellette, the court found that a will was properly attested even though the testator signed the Will before the two witnesses entered the room and there was no conversation between the two witnesses and the testator. It is settled that it is not necessary for the witnesses to observe the testator actually sign the Will so long as he or she acknowledges the signature and stating it to be his or her Will. In the present case, the Court concluded that it was not also required that the testator verbally affirm that the signature was his, where the witnesses observed and it was readily apparent that the signature was the testator’s, and no attempt was made to conceal the signature.

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