Who Can Witness My Will? (Episode #286)

WEBVTT

1
00:00:31.399 --> 00:00:37.039
Well, good afternoon, Michiganders.
Today is Tuesday, August twenty ninth.

2
00:00:37.159 --> 00:00:42.759
End of course, this is Tuesday
with Tom, Michigan's only weekly podcast where

3
00:00:42.799 --> 00:00:47.439
we answer your questions about a state
planning and a state settlement in Michigan.

4
00:00:48.000 --> 00:00:51.280
As always, I'm your host,
Tom Doyle, a state planning attorney,

5
00:00:51.320 --> 00:00:58.079
lifelong Michigan resident, and ambassador for
all things good in this great stated Michigan.

6
00:00:58.600 --> 00:01:03.120
Welcome to today's program. Well,
been a little while since I've been

7
00:01:03.159 --> 00:01:07.079
on the air with you, and
the last episode I talked about the I

8
00:01:07.359 --> 00:01:15.359
R S had eliminated stepped up in
basis for some assets. So as part

9
00:01:15.400 --> 00:01:19.920
of your state plan, if you
were counting on using step up in basis

10
00:01:21.040 --> 00:01:25.719
regarding assets, or you want to
know more what step up in basis even

11
00:01:25.920 --> 00:01:30.840
is, I invite you to listen
to the last episode. Well, today

12
00:01:30.920 --> 00:01:37.280
today I'm going to answer a question
that we are frequently asked by clients,

13
00:01:37.480 --> 00:01:44.840
that is, who can witness my
will? Who can witness my will?

14
00:01:44.920 --> 00:01:49.280
But please remember what I'm about to
discuss is, as always for educational purposes

15
00:01:49.359 --> 00:01:55.519
only. It is not intended to
be legal advice. You need to work

16
00:01:55.519 --> 00:02:00.239
with your attorney to determine what is
appropriate for you and your estate plan.

17
00:02:10.520 --> 00:02:15.919
Okay, so who can witness my
will? Well, let's start talking.

18
00:02:15.039 --> 00:02:20.280
Let's talk about a couple other things
about wills though, and let's start with

19
00:02:20.520 --> 00:02:27.439
what is required to even have a
valid will in the state of a Michigan.

20
00:02:27.560 --> 00:02:30.800
Essentially, the requirements are going to
be as follows. One, it

21
00:02:30.879 --> 00:02:36.560
has to be in writing. It
has to be in writing. That means

22
00:02:36.599 --> 00:02:43.039
you can't have electronic wills. It
can't mean you have wills that are only

23
00:02:43.120 --> 00:02:49.840
existing on a computer somewhere. Can't
be an oral will. A will under

24
00:02:49.879 --> 00:02:55.000
Michigan law has to be in writing. Two, the what the law refers

25
00:02:55.039 --> 00:03:00.319
to as the test stator, that's
the person who's making the will, either

26
00:03:00.439 --> 00:03:06.800
has to be signed by the testator, the person making the will, or

27
00:03:07.560 --> 00:03:15.159
in the testator's name, by some
other individual who was in the testator's conscience,

28
00:03:15.319 --> 00:03:21.319
conscious presence, and by the testator's
direction. That's to account for situations

29
00:03:21.319 --> 00:03:25.280
where perhaps you have an individual who
can't sign their name, they have a

30
00:03:25.319 --> 00:03:30.719
physical disability that would preclude them from
signing their name. In that case,

31
00:03:30.840 --> 00:03:38.280
they could direct somebody else to sign
the will in their presence. Also,

32
00:03:38.879 --> 00:03:45.879
the will has to be signed by
at least two people, two witnesses,

33
00:03:46.639 --> 00:03:53.240
and each of those witnesses have to
have signed the will within a reasonable time

34
00:03:54.240 --> 00:04:00.800
after either they witnessed the testators signing
it, so they saw the person signed

35
00:04:00.800 --> 00:04:09.479
the will, or within a reasonable
time after the testator acknowledged that the signature

36
00:04:10.400 --> 00:04:15.000
was theirs that they had signed it. So they don't necessarily have to see

37
00:04:15.800 --> 00:04:20.480
the person signing it, but they
do have to sign it themselves, and

38
00:04:20.560 --> 00:04:25.839
they do have to sign it either
within a reasonable time after they saw it

39
00:04:25.959 --> 00:04:31.439
signed or it was acknowledged as having
been signed. So the idea behind the

40
00:04:31.480 --> 00:04:40.360
witness to the will is they are
the ones that if there was a challenge

41
00:04:40.439 --> 00:04:44.879
to the will in court, they
are the ones the witnesses that could be

42
00:04:44.959 --> 00:04:51.199
called upon to testify in a will
contest that in fact, the document was

43
00:04:51.240 --> 00:05:00.839
signed by the test stator. That's
really the purpose of having the individual witness

44
00:05:00.839 --> 00:05:04.879
a will. So what are the
requirements to be a witness to a will?

45
00:05:04.959 --> 00:05:11.240
Well, first, what basically the
statute says is that an individual who's

46
00:05:11.279 --> 00:05:16.560
going to be a witness has to
be generally competent to be a witness and

47
00:05:16.720 --> 00:05:20.319
act as a witness to a will. So what does it mean to be

48
00:05:20.439 --> 00:05:27.040
competent? Well, there have been
court decisions that have previously discussed that matter,

49
00:05:27.680 --> 00:05:30.399
and essentially they're looking and saying,
or we've got court rules that will

50
00:05:30.439 --> 00:05:35.959
talk about this. The witness has
to be sufficient, has to have sufficient

51
00:05:36.480 --> 00:05:43.879
physical and mental capacity. That means
they have physical and mental ability to know

52
00:05:43.920 --> 00:05:50.160
what they're doing and a sense of
obligation to testify truthfully and understandably. Why,

53
00:05:50.279 --> 00:05:54.920
well, think again, what is
the witness for the witness to the

54
00:05:54.959 --> 00:05:58.720
will? Is? In case the
will is challenged, somebody has to come

55
00:05:58.759 --> 00:06:02.839
into court here to testify about the
execution the will, and we certainly that

56
00:06:03.000 --> 00:06:11.680
want that witness to be somebody who
understands what it is to testify truthfully.

57
00:06:12.800 --> 00:06:17.519
Now important because here's another question that
will always come about when we're talking about

58
00:06:17.639 --> 00:06:23.040
who can witness and I will.
So far, I haven't said anything about

59
00:06:24.160 --> 00:06:29.240
who can't. A lot of people
sometimes think, well, my spouse can't,

60
00:06:29.759 --> 00:06:32.240
right, or a lot of people
think somebody who's going to receive something

61
00:06:32.319 --> 00:06:38.079
under my estate can't. It used
to be that when I started practicing law,

62
00:06:38.560 --> 00:06:43.040
those would have been disqualifiers for somebody
to be a witness but under the

63
00:06:43.079 --> 00:06:48.519
more recent statue, the signing of
a will by an interested person or an

64
00:06:48.560 --> 00:06:58.240
interested witness does not invalidate the will. That means somebody who stands to benefit

65
00:06:58.399 --> 00:07:00.759
from the will, could be yourself, spouse, could be a child,

66
00:07:00.879 --> 00:07:11.399
could be somebody else, is not
precluded from being a witness. So anybody

67
00:07:11.439 --> 00:07:15.920
that's competent, whether they do or
do not receive something under your will,

68
00:07:16.839 --> 00:07:21.160
who understands and has a sense of
what it means to testify, to tell

69
00:07:21.240 --> 00:07:27.959
the truth, can be a witness. So the fact that the will is

70
00:07:28.000 --> 00:07:31.319
again witnessed by your spouse or a
child, or what we would call a

71
00:07:31.399 --> 00:07:36.839
devizy that's who somebody's going to get
something under your will, doesn't make the

72
00:07:36.959 --> 00:07:44.079
will in valid. So, in
answer to the question who can witness my

73
00:07:44.199 --> 00:07:48.720
will? Again, a lot of
people can witness your will. Just because

74
00:07:48.759 --> 00:07:54.319
you're related to them, just because
they're going to receive something under your will,

75
00:07:54.519 --> 00:07:58.680
does not mean they can't be a
witness. In this practical matter,

76
00:07:59.319 --> 00:08:03.680
what pretty much happens today when we're
working with a married couple and we're executing

77
00:08:03.720 --> 00:08:11.120
their documents, the spouses will witness
for each other, and then we have

78
00:08:11.240 --> 00:08:18.399
to have another individual O, there's
one other person that can't be or shouldn't

79
00:08:18.439 --> 00:08:22.079
I guess is a better way to
do that should not be a witness to

80
00:08:22.120 --> 00:08:26.600
the will, and that is if
the will has a provision for it to

81
00:08:26.639 --> 00:08:31.240
be notarized. A will does not
have to be notarized in the state of

82
00:08:31.279 --> 00:08:35.879
Michigan. All you have to do
is have two witnesses. But if that's

83
00:08:35.879 --> 00:08:39.440
all you do, meaning you only
have two witnesses to your will, and

84
00:08:39.720 --> 00:08:45.519
if the will is challenged, then
those witnesses are going to have to be

85
00:08:45.559 --> 00:08:50.559
available to be brought into court in
order to testify, which means it might

86
00:08:50.639 --> 00:08:54.759
be a matter of tracking them down. Who isn't where are they? What

87
00:08:54.960 --> 00:08:58.440
was the address you get their address
when the will was executed, etc.

88
00:08:58.519 --> 00:09:05.679
However, if a will is also
notarized, that will make the will self

89
00:09:05.799 --> 00:09:11.519
authenticating. And what does that mean. That means when it is notarized,

90
00:09:11.080 --> 00:09:20.240
the notary is notarizing both the signature
of the testator that's the person who's making

91
00:09:20.279 --> 00:09:30.120
the will, as well as notarizing
the signatures of the witnesses. Obviously,

92
00:09:30.159 --> 00:09:33.919
if the notary is going to be
notarizing the signatures of the witnesses, then

93
00:09:33.960 --> 00:09:41.440
the notary can't be a witness him
or herself, because a notary cannot notarize

94
00:09:41.559 --> 00:09:46.039
their own signature as a witness.
So if we have a will where we

95
00:09:46.120 --> 00:09:52.399
have two witnesses and we have a
notary, and the notary is notarizing both

96
00:09:52.440 --> 00:09:58.399
the signature of the maker of the
will or the testator as well as the

97
00:09:58.480 --> 00:10:07.600
witnesses, that makes the will self
authenticating or self proved. And when that

98
00:10:07.759 --> 00:10:15.320
is self proved, it conclus there's
a conclusively conclusive, if you will,

99
00:10:15.399 --> 00:10:26.519
presumption that the other requirements of execution
relative to witnesses have been fulfilled unless somebody

100
00:10:26.519 --> 00:10:31.240
can prove some sort of fraud or
forgery, forgery, excuse me, that

101
00:10:31.399 --> 00:10:37.120
obviously would impact that. So the
idea of making itself authenticating, quite frankly,

102
00:10:37.360 --> 00:10:46.720
is to avoid the necessity of producing
the witnesses if there's a challenge to

103
00:10:46.919 --> 00:10:50.399
the will. So most of us
today when we prepare will for clients,

104
00:10:50.440 --> 00:10:58.919
we are going to make it self
proving or self authenticating by having a notary

105
00:10:58.120 --> 00:11:03.559
who's going to arise the signature of
both the maker of the will as well

106
00:11:03.639 --> 00:11:13.000
as the witnesses. Now, there
might be reasons, not legal reasons,

107
00:11:13.080 --> 00:11:20.480
but practical reasons not to have certain
people receiving or witnessing your will. For

108
00:11:20.559 --> 00:11:26.679
example, somebody under eighteen. The
law doesn't say they have to be eighteen,

109
00:11:26.240 --> 00:11:31.720
but if they were under eighteen,
you might have an argument in the

110
00:11:31.759 --> 00:11:39.399
court that the miner wasn't a competent
witness, not because of their age,

111
00:11:39.440 --> 00:11:45.159
but that they weren't competent because they
truly could not have understood what was going

112
00:11:45.240 --> 00:11:48.919
on or have understood the importance of
telling the truth. So it's not just

113
00:11:48.039 --> 00:11:52.759
because they're eighteen, but that could
be a possibility. So generally speaking,

114
00:11:52.799 --> 00:12:00.759
as a practical matter, we're going
to want to have somebody over eighteen witness

115
00:12:01.080 --> 00:12:07.320
the will. Another reason. While
somebody who's going to receive something under the

116
00:12:07.399 --> 00:12:16.399
will can be a witness, sometimes
though, when somebody is going to receive

117
00:12:16.559 --> 00:12:22.159
something under the will and they do
witness, there might be an argument be

118
00:12:22.320 --> 00:12:28.360
made that that witness had a conflict
of interest. And so when they're testifying

119
00:12:28.440 --> 00:12:35.240
in court and saying that the will
was accurately signed by the person who executed

120
00:12:35.279 --> 00:12:39.919
it, there might be an argument
that someone attempts to make that look they're

121
00:12:39.000 --> 00:12:46.919
only saying that because by saying that
they stand in line to receive something under

122
00:12:48.320 --> 00:12:54.799
the will, So there can be
practical reasons when you're starting to look at

123
00:12:54.840 --> 00:12:58.879
who it is. Another practical reason, and particularly if you're only going to

124
00:13:00.039 --> 00:13:03.720
to have witnesses and it's not going
to be notarized, is if there's going

125
00:13:03.759 --> 00:13:07.200
to be a contest of that will, it could be years down the road.

126
00:13:09.000 --> 00:13:13.679
And when it is years down the
road, that witness might no longer

127
00:13:13.720 --> 00:13:16.759
be available. So how are you
going to track them down? How are

128
00:13:16.759 --> 00:13:22.840
you going to find them in order
to bring them into courts? So you

129
00:13:22.240 --> 00:13:30.120
have some practical considerations oftentimes when you're
looking at executing the will, but legally

130
00:13:31.720 --> 00:13:37.200
legally, as I've already discussed,
a spouse, a child, a devzy

131
00:13:37.320 --> 00:13:43.720
under the will, all of those
people can be witnesses. Sometimes it's a

132
00:13:43.759 --> 00:14:11.159
practical question of whether or not they
should be. Well, of course,

133
00:14:11.200 --> 00:14:16.080
if you have any questions about witnessing
a will, a man and I could

134
00:14:16.080 --> 00:14:18.000
certainly talk to you about that,
or obviously if we are going to be

135
00:14:18.080 --> 00:14:24.080
preparing your state plan, we will
make sure that you understand who can and

136
00:14:24.279 --> 00:14:28.480
cannot be witnesses to the will,
particularly if it's not going to be a

137
00:14:28.480 --> 00:14:35.960
will that's being executed at our office. Additionally, of course I mean and

138
00:14:37.000 --> 00:14:41.519
I would be honored to have the
opportunity to help you protect your loved ones

139
00:14:41.039 --> 00:14:46.039
by putting together in a state plan
might include a will, We would have

140
00:14:46.080 --> 00:14:50.759
to talk about that or amending a
current plan. Wills can be amended by

141
00:14:50.799 --> 00:14:54.960
having what we call a CODASO prepared
or perhaps assisting you in settling a loved

142
00:14:54.960 --> 00:15:01.679
one's estate. Simply head on over
to our website Doyle PC dot com.

143
00:15:01.720 --> 00:15:05.080
There you're going to find information about
how do you schedule consultation with us?

144
00:15:05.120 --> 00:15:11.039
It could be a zoom consultation,
could be a telephone consultation, could be

145
00:15:11.159 --> 00:15:16.840
in person consultation in our new East
Lansing office. Also again available at the

146
00:15:16.840 --> 00:15:20.679
website. If you're just looking to
have a particular document. Just this morning,

147
00:15:22.200 --> 00:15:26.120
someone was asking me about getting a
new certificate of trust prepared, directed

148
00:15:26.159 --> 00:15:31.200
them to the website our legal store. At the website you can order individual

149
00:15:31.279 --> 00:15:37.919
documents online and have them delivered to
you online. So again, if there's

150
00:15:37.919 --> 00:15:41.080
anything that we can do amand or
night to be of assistance to you,

151
00:15:41.639 --> 00:15:48.000
head on over to DOULAWPC dot com
and you will find more information about our

152
00:15:48.080 --> 00:15:56.120
services and how to schedule a consultation
with us. Well, I think that

153
00:15:56.200 --> 00:16:00.000
too is going to be it for
today's show. Kind of a short show

154
00:16:00.200 --> 00:16:06.720
today, but just wanted to make
sure that people understood the answer about to

155
00:16:06.879 --> 00:16:11.879
question of who can witness my will? As always, though, if you

156
00:16:11.000 --> 00:16:15.240
have a comment about the program,
perhaps a topic that you would like to

157
00:16:15.279 --> 00:16:21.919
have a discuss, or questions that
you would like to have answered, send

158
00:16:21.919 --> 00:16:26.919
me an email Tom at Tuesday.
Tuesday with Toom dot com and of course

159
00:16:26.080 --> 00:16:30.200
please it follow us on Facebook,
invite your family and friends to follow us.

160
00:16:30.240 --> 00:16:34.519
That would be Tuesday with Tom.
Follow the office as well. Doyle

161
00:16:34.639 --> 00:16:41.720
Law PC. Remember too, their
program is available probably where it is that

162
00:16:41.799 --> 00:16:47.279
you normally listen. Would listen to
a podcast, Apple Podcasts, Spotify,

163
00:16:47.519 --> 00:16:53.000
Google Podcast, iHeartRadio, Spreaker and
you can always ask your smart speaker to

164
00:16:53.120 --> 00:17:00.919
play Tuesday with Tom. Well,
thanks again for spending some of your Tuesday

165
00:17:00.000 --> 00:17:04.440
afternoon with us today and as always, I hope that you have an awesome

166
00:17:04.559 --> 00:17:15.640
day and an awesome week in Michigan. Stay safe. Tuesday with Tom has

167
00:17:15.640 --> 00:17:21.680
been brought to you by the estate
planning attorneys at Doyle Law PC to learn

168
00:17:21.720 --> 00:17:25.359
how we can help you with your
estate plan or with settling a loved one's

169
00:17:25.480 --> 00:17:30.200
estate. Please call us today at
five one seven three two three seven three

170
00:17:30.319 --> 00:17:33.720
six six. That's five one seven, three two three seven three six six