Law Articles

Executing Wills: beneficiaries should not be a witness

Jessie was very close with his son Luke.  They had a mutual interest in race cars and spent a great amount of time together at the local racetrack after Jessie’s wife died.  Although Jessie had three other grown children, he wanted Luke to inherit his entire estate.  One day, he asked Luke to his house.  Jessie was signing his last will and testament and asked Luke and a neighbor to serve as witnesses.  The will named Luke as the sole beneficiary of all of Jessie’s assets.  Luke and the neighbor signed the instrument on the witness lines after watching Jessie sign his will. 
After Jessie passed away, Luke took the will to an attorney to assist him with the estate.  He was disappointed to learn that the bequest to him was void. Jessie’s estate would be divided equally among his four children with Luke receiving just twenty-five percent.
I have previously written about the basic requirements to create a valid last will and testament in Ohio.  A written will must be signed at the end by the party making it (the “testator”) and the will must be attested and signed by at least two competent witnesses who saw the testator sign it or heard the testator acknowledge his or her signature on the will. 
The reason for the witness requirement is obvious. In the event there is a dispute over the genuineness of the will, the law allows an interested party to compel the testimony of a witnesses under oath in court that the testator was of sound mind and memory and was not under any restraint at the time of the will's execution.
But what happens if one of the witnesses, like Luke, is also listed in the will as a beneficiary?  Ohio law provides that a bequest made to a person who is one of only two witnesses to a will is void.  The purpose is to ensure the validity of a will.  A person who does not have an interest in the will is generally a more credible witness than a person who stands to gain financially from it.  It is important to note that the entire will is not invalid.  The only portion affected is the bequest to the witness. 
Witnesses who are also beneficiaries may not be completely out of luck.  If there are more than two witnesses on the will, then the bequest may stand.  Also, like in Luke’s case, if the witness would be entitled to a share of the testator's estate if there was no will, then the witness can inherit the portion of that share that does not exceed the bequest listed in the will.  Since Jessie was unmarried, his four children would inherit his estate if he died without a will.  At least Luke will receive twenty-five percent.
It is very important that you consult with a trusted probate attorney when executing estate planning documents.  Doing things without legal advice can lead to results that are not consistent with the testator’s intent.  Laribee & Hertrick, LLP is here to assist you.
This article is intended to provide general information about the law. It is not intended to give legal advice.  Readers are urged to seek advice from an attorney regarding their specific issues and rights.

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