Taxation & Estate Planning

The Petticoat Will, and Beneficiaries as Witnesses

By Joel A. Schoenmeyer

This article is an interesting one on the use of strange documentary evidence in court. The last item mentioned is the relevant one for my purposes:

MISS LILLIAN PELKEY?S PETTICOAT In Los Angeles, before the Second World War, George W. Hazeltine, 86, lay ill in hospital. He wanted to make a new will and leave $10,000 to his nurses, Lillian Pelkey and Madeline Higgins. There being no paper to hand, Miss Pelkey pulled up her dress, placed a board under her petticoat, and the will was pencilled on her undergarment. The petticoat was eventually admitted to probate but the nurses were prevented from benefiting from the will because they were attesting witnesses of it.

In Illinois the rule about beneficiaries as witnesses is as follows (this is from Section 4-6(a) of the Illinois Probate Act):

If any beneficial legacy or interest is given in a will to a person attesting its execution or to his spouse, the legacy or interest is void as to that beneficiary and all persons claiming under him, unless the will is otherwise duly attested by a sufficient number of witnesses as provided by this Article exclusive of that person and he may be compelled to testify as if the legacy or interest had not been given, but the beneficiary is entitled to receive so much of the legacy or interest given to him by the will as does not exceed the value of the share of the testator's estate to which he would be entitled were the will not established.

That's a sort of convoluted way of saying this:

1. If you are a beneficiary of a Will and a witness to the Will, you can't inherit your share. Neither can anyone "claiming under" you (like a child of yours if you predecease the testator).

2. Ditto for the case where you witness a Will and your spouse is named as a beneficiary -- your spouse can't inherit his or her share.

3. There's an exception to the two above rules if there are at least two other witnesses who are NOT named as beneficiaries in the Will, who can attest to its accuracy. But under this exception, you can't inherit more than you would if the testator died without a Will. An example:

Joe Smith is a widower with three children. He does a Will leaving 1/2 of his estate to his daughter Susan and 1/4 of his estate to each of his two sons. Susan witnesses the Will along with two officials from Mr. Smith's bank. Upon Mr. Smith's death, Susan can inherit only 1/3rd of her father's property (since that is what she would receive if he had died intestate).

Full post as published by Death and Taxes Blog on January 22, 2008 (boomark / email).