Who Can Witness My Will? (Episode #286)

0:31 Well, good afternoon, Michiganders. Today is Tuesday, August twenty ninth. End of course, this is Tuesday with Tom, Michigan's only weekly podcast where we answer your questions about a state planning and a state settlement in Michigan. As always, I'm your host, Tom Doyle, a state planning attorney, lifelong Michigan resident, and ambassador for all things good in this great stated Michigan. Welcome to today's program. Well, been a little while since I've been on the air with you, and the last episode I talked about the I R S had eliminated stepped up in basis for some assets. So as part of your state plan, if you were counting on using step up in basis regarding assets, or you want to know more what step up in basis even is, I invite you to listen to the last episode. Well, today today I'm going to answer a question that we are frequently asked by clients, that is, who can witness my will? Who can witness my will?

1:44 But please remember what I'm about to discuss is, as always for educational purposes only. It is not intended to be legal advice. You need to work with your attorney to determine what is appropriate for you and your estate plan. Okay, so who can witness my will? Well, let's start talking. Let's talk about a couple other things about wills though, and let's start with what is required to even have a valid will in the state of a Michigan.

2:27 Essentially, the requirements are going to be as follows. One, it has to be in writing. It has to be in writing. That means you can't have electronic wills. It can't mean you have wills that are only existing on a computer somewhere. Can't be an oral will. A will under Michigan law has to be in writing. Two, the what the law refers to as the test stator, that's the person who's making the will, either has to be signed by the testator, the person making the will, or in the testator's name, by some other individual who was in the testator's conscience, conscious presence, and by the testator's direction. That's to account for situations where perhaps you have an individual who can't sign their name, they have a physical disability that would preclude them from signing their name. In that case, they could direct somebody else to sign the will in their presence. Also, the will has to be signed by at least two people, two witnesses, and each of those witnesses have to have signed the will within a reasonable time after either they witnessed the testators signing it, so they saw the person signed

4:00 the will, or within a reasonable time after the testator acknowledged that the signature was theirs that they had signed it. So they don't necessarily have to see the person signing it, but they do have to sign it themselves, and they do have to sign it either within a reasonable time after they saw it signed or it was acknowledged as having been signed. So the idea behind the witness to the will is they are the ones that if there was a challenge to the will in court, they are the ones the witnesses that could be called upon to testify in a will contest that in fact, the document was signed by the test stator. That's really the purpose of having the individual witness a will. So what are the requirements to be a witness to a will?

5:04 Well, first, what basically the statute says is that an individual who's going to be a witness has to be generally competent to be a witness and act as a witness to a will. So what does it mean to be competent? Well, there have been court decisions that have previously discussed that matter, and essentially they're looking and saying, or we've got court rules that will talk about this. The witness has to be sufficient, has to have sufficient physical and mental capacity. That means they have physical and mental ability to know what they're doing and a sense of obligation to testify truthfully and understandably. Why, well, think again, what is the witness for the witness to the will? Is? In case the will is challenged, somebody has to come into court here to testify about the execution the will, and we certainly that want that witness to be somebody who understands what it is to testify truthfully.

6:12 Now important because here's another question that will always come about when we're talking about who can witness and I will. So far, I haven't said anything about who can't. A lot of people sometimes think, well, my spouse can't, right, or a lot of people think somebody who's going to receive something under my estate can't. It used to be that when I started practicing law, those would have been disqualifiers for somebody to be a witness but under the more recent statue, the signing of a will by an interested person or an interested witness does not invalidate the will. That means somebody who stands to benefit from the will, could be yourself, spouse, could be a child, could be somebody else, is not precluded from being a witness. So anybody that's competent, whether they do or do not receive something under your will, who understands and has a sense of what it means to testify, to tell the truth, can be a witness. So the fact that the will is again witnessed by your spouse or a child, or what we would call a devizy that's who somebody's going to get something under your will, doesn't make the will in valid. So, in answer to the question who can witness my

7:44 will? Again, a lot of people can witness your will. Just because you're related to them, just because they're going to receive something under your will, does not mean they can't be a witness. In this practical matter, what pretty much happens today when we're working with a married couple and we're executing their documents, the spouses will witness for each other, and then we have to have another individual O, there's one other person that can't be or shouldn't I guess is a better way to do that should not be a witness to the will, and that is if the will has a provision for it to be notarized. A will does not have to be notarized in the state of Michigan. All you have to do is have two witnesses. But if that's all you do, meaning you only have two witnesses to your will, and if the will is challenged, then those witnesses are going to have to be available to be brought into court in order to testify, which means it might be a matter of tracking them down. Who isn't where are they? What was the address you get their address when the will was executed, etc.

8:58 However, if a will is also notarized, that will make the will self authenticating. And what does that mean. That means when it is notarized, the notary is notarizing both the signature of the testator that's the person who's making the will, as well as notarizing the signatures of the witnesses. Obviously, if the notary is going to be notarizing the signatures of the witnesses, then the notary can't be a witness him or herself, because a notary cannot notarize their own signature as a witness. So if we have a will where we have two witnesses and we have a notary, and the notary is notarizing both the signature of the maker of the will or the testator as well as the witnesses, that makes the will self authenticating or self proved. And when that is self proved, it conclus there's a conclusively conclusive, if you will, presumption that the other requirements of execution relative to witnesses have been fulfilled unless somebody can prove some sort of fraud or forgery, forgery, excuse me, that

10:31 obviously would impact that. So the idea of making itself authenticating, quite frankly, is to avoid the necessity of producing the witnesses if there's a challenge to the will. So most of us today when we prepare will for clients, we are going to make it self proving or self authenticating by having a notary who's going to arise the signature of both the maker of the will as well as the witnesses. Now, there might be reasons, not legal reasons, but practical reasons not to have certain people receiving or witnessing your will. For example, somebody under eighteen. The law doesn't say they have to be eighteen, but if they were under eighteen, you might have an argument in the court that the miner wasn't a competent witness, not because of their age, but that they weren't competent because they truly could not have understood what was going on or have understood the importance of telling the truth. So it's not just because they're eighteen, but that could be a possibility. So generally speaking, as a practical matter, we're going to want to have somebody over eighteen witness the will. Another reason. While somebody who's going to receive something under the

12:07 will can be a witness, sometimes though, when somebody is going to receive something under the will and they do witness, there might be an argument be made that that witness had a conflict of interest. And so when they're testifying in court and saying that the will was accurately signed by the person who executed it, there might be an argument that someone attempts to make that look they're only saying that because by saying that they stand in line to receive something under the will, So there can be practical reasons when you're starting to look at who it is. Another practical reason, and particularly if you're only going to to have witnesses and it's not going to be notarized, is if there's going to be a contest of that will, it could be years down the road.

13:09 And when it is years down the road, that witness might no longer be available. So how are you going to track them down? How are you going to find them in order to bring them into courts? So you have some practical considerations oftentimes when you're looking at executing the will, but legally legally, as I've already discussed, a spouse, a child, a devzy under the will, all of those people can be witnesses. Sometimes it's a practical question of whether or not they should be. Well, of course, if you have any questions about witnessing a will, a man and I could certainly talk to you about that, or obviously if we are going to be preparing your state plan, we will make sure that you understand who can and cannot be witnesses to the will, particularly if it's not going to be a will that's being executed at our office. Additionally, of course I mean and I would be honored to have the opportunity to help you protect your loved ones

14:41 by putting together in a state plan might include a will, We would have to talk about that or amending a current plan. Wills can be amended by having what we call a CODASO prepared or perhaps assisting you in settling a loved one's estate. Simply head on over to our website Doyle PC dot com. There you're going to find information about how do you schedule consultation with us? It could be a zoom consultation, could be a telephone consultation, could be in person consultation in our new East Lansing office. Also again available at the website. If you're just looking to have a particular document. Just this morning, someone was asking me about getting a new certificate of trust prepared, directed them to the website our legal store. At the website you can order individual documents online and have them delivered to you online. So again, if there's anything that we can do amand or night to be of assistance to you, head on over to DOULAWPC dot com and you will find more information about our services and how to schedule a consultation with us. Well, I think that too is going to be it for today's show. Kind of a short show today, but just wanted to make sure that people understood the answer about to question of who can witness my will? As always, though, if you have a comment about the program, perhaps a topic that you would like to

16:15 have a discuss, or questions that you would like to have answered, send me an email Tom at Tuesday. Tuesday with Toom dot com and of course please it follow us on Facebook, invite your family and friends to follow us. That would be Tuesday with Tom. Follow the office as well. Doyle Law PC. Remember too, their program is available probably where it is that you normally listen. Would listen to a podcast, Apple Podcasts, Spotify, Google Podcast, iHeartRadio, Spreaker and you can always ask your smart speaker to play Tuesday with Tom. Well, thanks again for spending some of your Tuesday afternoon with us today and as always, I hope that you have an awesome day and an awesome week in Michigan. Stay safe. Tuesday with Tom has been brought to you by the estate planning attorneys at Doyle Law PC to learn how we can help you with your estate plan or with settling a loved one's estate. Please call us today at five one seven three two three seven three six six. That's five one seven, three two three seven three six six