Generally, a valid last will and testament in Michigan requires all of the following:
- It must be in writing. MCL 700.2502(1)(a).
- It must be signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction. MCL 700.2502(1)(b).
- It must be signed by at least two witnesses, each of whom signed within a reasonable time after he or she witnessed either the signing of the will or the testator’s acknowledgment of that signature or acknowledgment of the will. MCL 700.2502(1)(c).
A witness serves an important function in the execution of somebody’s final will. Not only are they assisting the testator in making sure that the document is valid, but they may be called upon to testify in a court of law during a will contest that this document was in fact signed by the testator. For the testator, it is important to ensure that the witness requirement is satisfied so the risk that the will would be set aside is minimized.
WHAT ARE THE REQUIREMENTS TO WITNESS A WILL?
MCL 700.2505(1) states “[a]n individual generally competent to be a witness may act as a witness to a will.”
What does it mean to be a competent witness? In a court of law, a witness is competent if the witness has sufficient physical and mental capacity and a sense of obligation to testify truthfully and understandably. MRE 601. Essentially, the witness must be able to truthfully recall the circumstances that the document was signed.
Further, MCL 700.2505(2) states “[t]he signing of a will by an interested witness does not invalidate the will or any provision of it.” An interested witness means someone that stands to benefit from the testator’s will or is an heir or creditor to his or her estate. The fact that the will is witnessed by your spouse, child, heir or devisee does not make it invalid (although it is preferable that the witness is not an interested person so that a contestant to the will is not able to establish bias or conflict of interest).
Finally, if a witness who is competent at the time that he or she signed the will later becomes incompetent due to physical or mental deficiency or disease, it does not prevent the will from being valid. “If a witness is competent at the time he or she signs the will, the witness’s subsequent incompetency from whatever cause does not prevent admission of the will to probate, if it is otherwise satisfactorily proved.” MCL 700.3406(3).
WHAT MUST THAT PERSON DO TO PROPERLY WITNESS THE WILL?
According to Michigan Civil Jury Instruction 170.13, “[a] will is witnessed in the manner required by law if each witness signed the document within a reasonable time after he or she did ANY ONE of the following:
- Saw the decedent sign the document.
- Heard the decedent say or otherwise acknowledge that the signature on the document was his or her signature.
- Heard the decedent say or otherwise acknowledge that the document was his or her will.
The witness does not have to see or hear the same act of the decedent mentioned above as the other witnesses (e.g. one witness can watch the testator sign and the other witness can be told by the testator the next day that the document was his or her will). The witnesses are not required to sign the will at the same time.
What constitutes “within a reasonable time” for the witness to sign the document? Under Michigan’s prior statute, the Michigan Court of Appeals determined that witnesses could not sign the will after the testator’s death. In re Estate of Mikeska, 140 Mich App 116; 362 NW2d 906 (1985). However, the provisions of the Estates and Protected Individuals Code does not state any such limit and it is possible that the reasonable-time requirement can be satisfied if the witness signs the document after the testator’s death. What is reasonable is determined on a case-by-case basis.
WHAT PROOF IS REQUIRED TO ESTABLISH VALIDITY DURING A WILL CONTEST?
According to Michigan Civil Jury Instruction 170.15B, a judge or jury “may find that the will was executed in the manner required by law based upon ANY of the following:”
- The testimony of one of the witnesses who signed the will.
- The testimony of any person who did not actually sign the will as a witness but has personal knowledge of the signing of the will by the decedent and by the witnesses.
- Any other evidence.
The testimony of at least one of the witnesses is required if at least one of them is competent, able to testify, and is within the State of Michigan. MCL 700.3406(1). It is not necessary for both witnesses to testify. If both witnesses are deceased or out of state, then the proponent of the will can use other evidence to establish the will.
It is possible for a will to be found properly witnessed even if the witness doesn’t remember or testifies that it was not his or her signature. The Michigan Supreme Court ruled in In re Dettling Estate, 351 Mich 335; 88 NW2d 252 (1958) that the subscribing witness’s signature was valid even when that witness testified to the contrary:
- “Even where a subscribing witness denies the existence of certain facts necessary for the legal execution of the will, the presumption of regularity may prevail over such direct evidence. The subscribing witness, by acting as such, in effect formally declares that all the facts necessary to the legal execution of the will exist, and in advance, by acting as a subscribing witness, he has seriously discredited his subsequent denial of these facts under oath. It is, therefore, quite possible that the presumption that the necessary acts have been performed is not overcome by the adverse testimony of one or more of the subscribing witnesses, and a will may be admitted to probate although one or more of the subscribing witnesses testify adversely thereto. The testimony of the subscribing witnesses which denies the performance of one or more of the facts which are necessary to the validity of the will is, at best, to be received with caution, and to be viewed with suspicion.” 351 Mich at 340.
Of course, if the witness is hostile or doesn’t remember, then the burden is on the proponent to produce other witnesses or evidence to show that the will in question was properly executed by the testator.
WHAT CAN THE TESTATOR DO TO BETTER PROTECT THE WILL?
A testator concerned about a will contest, he or she might want to consider obtaining a “self-proved will”. “A will may be simultaneously executed, attested, and made self-proved by acknowledgment of the will by the testator and 2 witnesses’ sworn statements, each made before an officer authorized to administer oaths under the laws of the state in which execution occurs and evidenced by the officer’s certificate, under official seal.” MCL 700.2504(1). This means that the testator and both witnesses will have their signatures acknowledged by a notary public.
If the will is self-proven, then it may not be necessary for the proponent of the will to locate the witnesses for a will contest. “If a will is self-proved, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal without the testimony of any witness upon filing the will and the acknowledgment and sworn statements annexed or attached to the will, unless there is proof of fraud or forgery affecting the acknowledgment or a sworn statement.” MCL 700.3406(2). If the contestant does produce evidence that the will was the result of fraud or forgery, then the proponent may have no choice but to locate the witnesses to overcome this issue.
WHAT IS THE BEST PRACTICE FOR SELECTING WITNESSES FOR A WILL?
While any witness that is “competent” can sign your last will and testament, the following tips are suggested:
- Avoid selecting anyone under age 18 to witness your will because a probate court may determine that a minor is not a “competent witness”. However, it is not a bad idea to have witnesses younger than you so that they will survive long enough to testify if necessary.
- Avoid selecting anyone listed in the will that stands to inherit, including the proposed executor or personal representative. This prevents the contestant from alleging the witness has a conflict of interest.
- Avoid selecting anyone that stands to inherit if the will was set aside, including your spouse, children and grandchildren. This prevents giving any witness a reason to go against your wishes.
- While a total stranger can technically witness a will, be sure they are trustworthy and also collect an address or phone number so that your executor or personal representative can locate them in the future.
- Ensure the witnesses sign the document as soon as practically possible, preferably right after the testator signs. The longer the witnesses wait to sign, the more likely this important task will be neglected.
The advantage of having a skilled estate planning lawyer handle the preparation of your last will and testament is that the law firm will often provide the witnesses and notaries public necessary to carry out the proper execution of the document. This will reduce the issues of conflict of interest and the witnesses will be easy to locate in the future. Our office is ready and able to handle all of your estate planning needs.
If you have further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.