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Can You Witness a Will and Still Take?

By Jennifer Sawday

Can an interested party be a witness to a will? In other words, the will leaves you something and you are one of the witnesses subscribed to the will. Is the gift in the will to you invalid?

It depends.

First, a duly executed will is not invalid because signed by an ?interested witness? (i.e., one who has also been devised property under the will); such a person is still a ?competent? witness to the will's validity. See California Probate Code Section 6112 (a), (b). Click here to see the CA Probate Code to review pertinent sections.

Although the will itself may be valid, decedent's testamentary transfer to the ?interested witness? may be become invalid.

Unless the will is also witnessed by at least two other disinterested witnesses, there is a rebuttable presumption affecting the burden of proof that the ?interested witness? procured his or her devise by duress, menace, fraud or undue influence except that this presumption does not apply to witnesses given a devise ?solely in a fiduciary capacity? (e.g., as trustee). See California Probate Code Section 6112 (c).

The interested witness may still take that portion of the devise (i.e., gift) to which he or she would have been entitled had there been no will?i.e., the devise under a prior will or interest under the laws of intestate succession. See California Probate Code Section 6112 (d).

While this is a very specific legal analysis and may vary based upon the facts at hand... the rules are pretty clear:

1. Disinterested persons are best witnesses to a will.

2. An interested person can be a witness if there are also two other witnesses (California requires two witnesses normally, but three are not uncommon).

3. If an interested person is a witness, the will itself is likely still valid unless there are other defects.

4. If all else fails, the interested person will likely only take their share had there not been a will.

If this sounds complicated, which it is, please consult with your attorney regarding any wills you may have a question about as this analysis is very fact dependent and may be interpreted differently by the courts. The courts tend to want to determine what the testator's intent was and follow that despite what defects there may be.

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Estate Planning, Probate and Trusts involve complex areas of law. Individual circumstances must be considered before any advice can be given.  The general information above is not to be construed as legal advice, which can only be given after consideration of the unique facts of each matter. Please seek the advice or counsel of your attorney, financial advisor or CPA as it may be appropriate.

Full post as published by Estate Planning Practice Blog on September 27, 2008 (boomark / email).