Will Survivers Challenge for Improper Execution

by Nikki Marie Oliveira

A recent appeals court case wrestled with the issue of whether a last will and testament was properly executed in 2006.  Specifically, in Farrell v. McDonnell, Middlesex Appeals Court, Dec. 1, 2011, No. 11-P-589, the Appeals Court had to determine whether the testatrix adequately acknowledged her signature to the witnesses. 

The facts are as follows:  The decedent, Kendall, went to a bank with her two named co-executors, McDonnell and Turner, in order to sign her will.  Upon arriving they asked a notary, Lindstedt, for assistance.  Lindstedt could not remember this particular event, but she testified as to her normal procedure for notarizing wills at the bank, which included: (1) first, verifying the identity of testatrix; (2) second, having the testatrix read aloud the attestation or notarization clause; (3) third, watching the testatrix sign the will; (4) fourth, notarizing the testatrix’s signature; and (5) lastly, calling two tellers, one-by-one, to witness the document.  Here, the witnesses could not recall the day either, but testified to their usual practice, which included: (1) reviewing identification of the signatory; (2) ensuring that the name on the document matched the name of such person; and (3) signing as a witness.  The witnesses ordinarily did not see the actual signing of the will.  Both witnesses testified that they sometimes engaged in conversation with signatories, if time permitted.  However, in this case neither witness spoke to Kendall.

The decedent died about a year later on August 14, 2007, and the petition to probate her will was filed the following month.  The will was contested by the decedent’s sister and two other parties, arguing that the will was not valid because it was not properly executed – the issue in the present case – and on the grounds of undue influence and lack of testamentary capacity.

According to the strict language of G.L. c. 191, § 1, which was in effect at the time of the signing of the will, “[e]very person eighteen years of age or older and of sound mind may by his last will in writing, signed by him … and by his express direction, and attested and subscribed in his presence by two or more competent witnesses, dispose of his property.”  Simply stated, any person who is of sound mind and at least 18 years old may dispose of his property by will, provided such document is signed by him and two witnesses.  

The lower court held that the decedent’s will was not properly executed and was therefore invalid due to the fact that Kendall neither explicitly nor impliedly acknowledged her signature on the will since she did not communicate with the witnesses or personally ask them to witness.  The 1955 Massachusetts case Goodwin v. Riordan, 333 Mass. 317 (1955), held that “[a] presumption of proper execution is inferred upon proof of all the signatures, even though the living witnesses can recollect nothing of the circumstances.”  The appellants argued that the trial judge failed to explain why the presumption was not applicable in this case, since the requirements were clearly met.  Furthermore, according to the 1860 case Ela v. Edwards, 16 Gray 91 (1860), it is not required that the witnesses personally view the “testator sign his name, or in express terms declare the signature to be his.”

Ultimately, the Appeals Court found that the decedent did in fact sufficiently acknowledge her signature since she not only sat at the desk and watched the witnesses sign her will without interrupting, but also read the attestation clause aloud, executed her will and watched Lindstedt notarize it.  All of these acts together show that she intended to sign her will and prove that her execute was valid.

Now, under the new MUPC, the statute for the execution of the will, section 2-502 states:

(a)   Except as provided in subsection (b), a will shall be:
       (1)  in writing;
       (2)  signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction; and
       (3)  signed by at least 2 individuals, each of whom witnessed either the signing of the will as described in paragraph (2) or the testator’s acknowledgment of that signature or acknowledgment of the will.

(b)  Intent that the document constitute the testator’s will can be established by extrinsic evidence.

Kendall’s execution of her will fits this new standard, as it was not disputed that it was in writing; it was signed by her; it was signed by two witnesses; and she impliedly acknowledged her signature by silent acceptance. Farrell confirms that it is not necessary for the testatrix to personally ask the witnesses to sign her document or to specifically state that the signature is hers, if it is obvious from the underlying circumstances.

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