LEGAL MATTERS – THE IMPORTANCE OF A PROPERLY SIGNED WILL

Jason P. Mallory, H.B.A., J.D.

Most of us do not realize that there are very specific rules when it comes to signing a Last Will and Testament. Running afoul of these rules could invalidate your entire Will!

It is the job of your estate planning lawyer to ensure that your Wills are properly executed and witnessed.

The Testator is the person who is signing their Will. For a lawyer-drawn or type-written Will (one that is not entirely in the handwriting of the testator), the testator must sign the Will in the presence of two witnesses. All three individuals must be present at the same time during the signing of the Will.

I have seen a Will that was missing the signature of one of the witnesses, and a Will that was not signed by the testator but was signed by the witnesses only. These are just a few examples of improperly signed Wills.

There are specific rules about who can be a witness to a Will. For example, no beneficiary or spouse of a potential beneficiary should be a witness. This requirement is intended to prevent issues of undue influence, and if not properly complied with may invalidate a gift contained in the Will to a person who was also a witness to the signing of the Will.

Different and very specific rules apply to a member of forces on active service, and with respect to Holograph Wills that are entirely in the handwriting and signature of the testator.

It is also imperative that you sign only one original Will if you are executing a general Will. If your lawyer has prepared multiple Wills for you for probate-tax planning purposes (such as where the testator owns shares in a private corporation or certain farm lands, for example) you are again only to sign one original of each of the multiple-Wills, and specific wording is required in such multiple Wills to ensure that they do not revoke the other.

Your estate planning lawyer will assist you with these Will signing rules. If you are unsure of the rules or have any questions with respect to the proper execution of your Will, be sure to ask your lawyer for clarification before it is too late.

Jason P. Mallory

is the managing lawyer at Kerr Wood & Mallory in Blenheim and recipient of the Margaret E. Rintoul Award in Estate Planning

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