D.C. Court of Appeals: A Will Without Witnesses is No Will at All

We have had more than one client make a comment like “it takes a village” to get their Last Will and Testament signed.  That is because often the conference room is full of people due to the formalities required to sign a Will; specifically, we always have two witnesses and a Notary to confirm that the client has executed his or her Will.  We take formalities very seriously and a D.C. Court of Appeals case from June of 2012 [1] illustrates why formalities are so important.

The pertinent facts of the case are that the D.C. Probate Division allowed a Will to be probated that had been signed by the Testator and a Notary, but no witnesses.   The Probate Division had relied on a law that stated a Will could be probated if affidavits were received from people “who have personal knowledge of the circumstances surrounding the execution of the decedent's will” even though D.C. law clearly requires two credible witnesses to sign a Will in order for it to be valid.

The Court of Appeals held that the Probate Division had erred by probating the Will and that the law it relied on was not a substitute for actual witnesses; rather, that law could enable a Will to be probated even if the Witnesses could not be reached at the time of Probate.  Thus, the D.C. Court of Appeals confirmed that the witness requirement for a Will signing must be strictly adhered to in order for a Will to be valid.

This is not a surprising decision, but it is a good reminder of the importance of formalities when signing documents.

[1] In re Estate of Henneghan, 45 A.3d 684 (D.C. Cir. 2012)

-  Michael Wolsh, Esq.

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