Protect your estate plan with the proper execution of documents

A self-proving affidavit is a legal document that accompanies a will, allowing the will to be admitted to probate without the live testimony of the witnesses who signed the will. Essentially, it "self-proves" the authenticity of the will, simplifying the court-supervised probate process.

When an individual passes away, their will typically must go through probate to be deemed valid by the court. This process ensures that the deceased's assets are distributed according to their wishes. One of the steps in this process involves authenticating the will, which traditionally requires the testimony of the witnesses who watched the testator (the person who made the will) sign the document.

However, getting these witnesses to testify – sometimes years after the will was signed – can be cumbersome. They might have moved, passed away or simply be hard to locate. A self-proving affidavit is a solution to this potential problem.

A self-proving affidavit typically includes an acknowledgment by the testator. The person who made the will declares that it is their last will and testament and that they signed it willingly. The witnesses affirm that they saw the testator sign the will, believed the testator to be of sound mind at that time and also signed the will themselves in the presence of the testator. The self-proving affidavit usually needs to be notarized, which means that a notary public verifies the identities of the signers and ensures they signed the document willingly.

With a self-proving affidavit, the probate court can easily verify the authenticity of the will without needing to track down witnesses. As a result, the probate process can be expedited because there's no need to wait for witness testimony. Also, there's less room for disputes over the will's authenticity when it's accompanied by a self-proving affidavit.

In the Tennessee case, a father had created a will before he died. The father's will was admitted to probate later that month. The will named two of the man's children as co-executors. The man left behind four surviving children. A fifth child, who had four children of her own, predeceased the man. The man left distributions to two of his surviving children (the two who were also named as co-executors), as well as three of the deceased daughter's children. The man’s other two children, along with the deceased daughter's fourth child, were not mentioned in the will.

One of the man’s children not named in the will was a son who contested his father’s will, arguing that the witnesses did not sign the will validly under the rules of Tennessee law. A Tennessee appeals court agreed with the son and found that the witnesses had not met the requirements of state law, which requires that two witnesses sign the will in the presence of the testator.

In the opinion of the appeals court, no one legally signed the man's will as a witness. That, in turn, meant that the will did not meet the witness requirements established by Tennessee law, and so, the man had no valid will and died intestate. As a result, each of his children, as well as each of the children of his deceased daughter, were entitled to the portion of his estate established by Tennessee's intestacy laws.

Ensuring that a last will and testament is properly executed is crucial to avoid disputes and potential invalidation of the document. Witness signatures play a fundamental role in this process. Here are some guidelines to avoid problems with these signatures:

• Understand your state's requirements. Different states have varying requirements for the signing of a will. Most jurisdictions require two witnesses. Always ensure you're familiar with the specific rules of your jurisdiction.


• Choose competent witnesses. Witnesses should be of legal age (usually at least 18 years old) and of sound mind. They should be capable of understanding the significance of the event they are witnessing.


• Use disinterested witnesses. It's often recommended that witnesses should not be beneficiaries in the will. A witness who stands to gain from the will could be seen as having a conflict of interest, which might raise challenges to the will's validity.


• Presence at signing is essential. All witnesses should be present when the testator signs the document. They should see the testator sign, and the testator should see each of them sign. This ensures that they can vouch for the testator's state of mind and willingness at the time of signing.


• Consistent ink and writing instrument. To avoid any potential claims of tampering, it's wise to use the same type of pen for all signatures and initials, if necessary.


• Include a self-proving affidavit. As discussed, a self-proving affidavit can simplify the probate process by providing a notarized statement from the witnesses about the signing event, reducing the need for them to testify in court.


• Review the document aloud. Before signing, the testator should read the will aloud in front of the witnesses. This step helps ensure that the testator knows and understands the content and that the witnesses can vouch for the testator's competence and lack of duress.


• Regularly update and re-execute. Life circumstances change, and so do legal requirements sometimes. If you amend or update your will, go through the same witnessing process as you did with the original.


• Keep witnesses informed. Ensure that your witnesses are aware that they may be called upon if there are any disputes regarding the will's validity. It might also be wise to have updated contact details for them.


• Store your will in a safe location. Once executed, the will should be stored in a safe and easily accessible place. Inform a trusted person or executor about its location. This reduces the chances of it being lost, destroyed or tampered with.


• Avoid multiple copies. If you have multiple copies of your will, ensure that it's clear which one is the original. The presence of conflicting versions can lead to confusion and legal disputes.


• Consult an experienced estate planning lawyer. Perhaps the most fail-safe way to ensure that the witnessing of your will is done correctly is to have the process overseen by an attorney. They will be familiar with local requirements and can guide the process smoothly.

While we may not know with absolute certainty what the Tennessee man's true goals were for his estate, his intended objectives almost certainly were not the same as the plan contained in state intestacy laws. These default intestacy laws typically provide that the deceased person's property will be distributed to their closest surviving relatives, such as their spouse, children and parents. If there are no close relatives, the property may be distributed to the state.

All of the legal troubles happened simply as a result of how the witness signature areas were prepared on his will.

The witnessing process for a will is a safeguard to ensure that the testator's wishes are genuinely their own and were made without undue influence or duress. Proper execution and witnessing are essential for the will's smooth passage through probate and for the wishes of the testator to be honored.

Remember, it’s vital to make sure that the witnesses are competent to sign the will. This means that they must be of sound mind and not under the influence of drugs or alcohol. Also, make sure the witnesses sign the will in the presence of the testator. This means that the testator must be present when the witnesses sign their names.

Unlike the Tennessee case, have the witnesses sign their names in the appropriate place on the will. In most states, the witnesses' signatures must be on the same page as the testator's signature. Also have the witnesses print their names and addresses below their signatures. This will help to identify them if there is ever any question about the validity of the will.

If you are concerned about the validity of your will, you should consult with an estate planning attorney. An attorney can review your will and advise you on any potential problems.