A recent decision by the Massachusetts Appeals Court demonstrates the importance, though not absolute necessity, of having your will notarized. In the case In the Matter of the Estate of John J. King (Mass. App. 19-P-1210, September 2, 2020), the Appeals Court overturns a probate court decision rejecting a will that was not notarized, ruling that it should have allowed the presentation of additional evidence as to the will's validity.
Here's What Happened
John J. King died on August 2, 2017. In November, his daughter, Robin E. Pelletier, filed a petition to administer the estate under the rules of intestacy for estates without wills. A month later, her brother, John. J. King, Jr., filed a petition asking for the allowance of a will dated September 3, 2013.
That will gave Mr. King's entire estate to John and intentionally omitted Robin, as well as another son, Paul. A third son, Francis, would receive the estate if John had predeceased their father. The will was witnessed by three individuals, but was not notarized.
The will statute does not require that wills be notarized, but if they are not, one of the witnesses is supposed to attest to the will's validity at the probate court. Unfortunately for John, by 2017, all three witnesses to his father's will had died, so they couldn't show up in court to sign the necessary affidavit. If the will had been notarized with what's referred to as a "self-proving" affidavit, there would be no need for anyone to show up in court.
Fortunately for John, Jr., the will statute also permits the proponent of a will to prove its validity "by other evidence." M.G. L. c. 190B, § 3-406 (a).
Probate Court Decision
On February 14, 2019, the probate court held a trial on the validity of Mr. King's will. It permitted John to testify as to his knowledge of the will, but did not allow him to testify about his own knowledge of his father's signature nor present the conclusion of a handwriting expert he had hired. In addition, it did not permit the handwriting expert to testify directly. In the absence of this testimony, the probate judge concluded that John had not met his burden of proving the validity of the will.
Appeals Court Reverses
On appeal, the Appeals Court finds the probate judge's limitation on the evidence it would permit John to present was unfair and contrary to the law:
By denying John the opportunity to present extrinsic evidence for consideration in determining proper execution of the will, the judge deprived John of a "full and fair hearing upon the whole evidence" in violation of due process. . . . We do not here decide whether the extrinsic evidence proffered by John was sufficient to prove the validity of the will, but rather conclude only that the judge erred in restricting John's presentation of that evidence in violation of G. L. c. 190B, § 3-406.
As a result, the Appeals Court sent the case back to the probate court for a new hearing in which John will be permitted to present his whole evidence.
While this case shows that it's not necessary to notarize a will, since even in the absence of witnesses, John is permitted to present evidence as to the will's validity, it sure would have been a lot easier for all concerned if Mr. King had had his will notarized. Think of the uncertainty, legal costs, delay, and undoubted family conflict. My guess is that Mr. King did not use a lawyer since every lawyer makes sure that wills include executed self-proving affidavits. A case of penny wise, pound foolish.