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Bar News - March 16, 2012


Elder, Estate Planning and Probate Law: Will Executions: Reviewing the Formalities

By:

Though the execution of a will is a relatively straightforward procedure when a testator, two witnesses and a Notary Public are together in a conference room, circumstances sometimes call for a will to be signed outside the confines of a law office, which increases the chances that the formal requirements for a valid will might be overlooked. In the event of a will contest, one issue will undoubtedly be whether the formalities under RSA 551:2 have been met. For this reason, it may be fruitful to take a second look at our Statute of wills, to make certain that any will executed under your supervision can withstand scrutiny in the event of a challenge to its validity.

Before examining the statute, consider the following scenarios:

(1) An elderly client asks that you come to her house to oversee execution of her will. When you arrive, accompanied by an extra witness and a Notary Public, you are surprised to discover that she has already signed her will. Is this a problem?

(2) Married clients ask you to come to their home after work to supervise execution of their wills. Although you are a Notary Public, you remind the clients that two witnesses are needed. They assure you that the couple living next door can serve as witnesses. When you arrive, you learn that the neighborís husband is away on business, and that she is the only witness available. Is this a problem?

(3) You receive a call informing you that your client is in the hospital and has just signed the will you recently drafted. You learn that the will was witnessed by two nurses and acknowledged before a Notary Public. You are aware that the will was clearly stamped "Draft" on the first page and find out that, apart the attestation page, none of the pages has been initialed or signed by the testator or the witnesses. Is this a problem?

(See Answers below)

The New Hampshire Statute of wills, RSA 551:2, is deceptively short. It provides that, to be valid, a will or Codicil to a will shall:

I. Be made by a testator qualifying under RSA 551:1; and

II. Be in writing; and

III. Be signed by the testator, or by some person at his or her express direction in his or her presence; and

IV. Be signed by 2 or more credible witnesses, who shall, at the request of the testator and in the testatorís presence, attest to the testatorís signature.

No seal shall be required. These requirements shall apply to all wills executed on or after January 1, 1993.

The first requirement, that of a testator qualifying under RSA 551:1, is satisfied if the testator is at least 18 years old (or married) and of sane mind. Though not explicitly set forth in the statute, it is axiomatic that, in addition to being compos mentis, the testator must be "under no constraint or undue influence," as referenced in the self-proving affidavit. RSA 551:2-a.

The second requirement, that the will must be "in writing," is self-explanatory. RSA 21:23 defines the words "in writing" to mean: "printing or any other mode or representing words or letters, except where the written signature of a person is required." Oral wills, known as Nuncupative wills, are rare and permissible only in extremely limited circumstances. See RSA 551:15, 551-16.

The third requirement, that the will must be "signed by the testator, or by some person at his or her express direction in his or her presence" is seldom problematic. It has long been held that a mark or the initials of a testator will suffice for a signature. Lord v. Lord, 58 N.H. 7 (1876). If the testator is too infirm to physically sign a will, the statute expressly provides that the testator may direct someone to sign on his or her behalf, provided such signature by proxy is done at the testatorís direction and in his or her presence. It is worth noting that that statute contains no requirement that the testator sign the will in front of the witnesses, which is not in fact a requirement for a valid will. DeGrandpre, 7 NH Practice, wills, Trusts and Gifts ß 6.02 (2) (4th Ed. 2003). Indeed, the self-proving language contains no reference to the testator signing in the presence of the witnesses, see RSA 551:2-a, although of course it is good practice to have the witnesses watch the testator execute the will.

The fourth requirement is perhaps the most common source of errors. It provides that a will must "be signed by 2 or more credible witnesses, who shall, at the request of the testator and in the testatorís presence, attest to the testatorís signature." RSA 551:2 (IV). Although a testator need not execute a will in front of the witnesses, the witnesses, by contrast, must sign at the testatorís request and in his or her presence. Failure to meet this requirement can be fatal. For example, in In re Estate of Catherine Fischer, 152 N.H. 669 (2005), a bedridden testatrix signed her will in a room off the kitchen, after which the attorney took the will out to the porch, where the witnesses signed out of sight and earshot of the testatrix. On these facts, the Supreme Court determined that the record was insufficient to support admission of the will. Id. In practical terms, the witnesses should always sign in the same room as the testator.

A "credible witness" is any party competent to testify as to attestation of the will. DeGrandpre, 7 NH Practice, wills, Trusts and Gifts ß 6.02 (4) (4th Ed. 2003). A devise or bequest to a subscribing witness, or the spouse of such a witness, however, is automatically void unless there are two additional subscribing witnesses, though the will is still otherwise valid. RSA 551:3. To avoid this result, neither a beneficiary, nor the spouse of a beneficiary, should serve as a witness.

A witness can "attest to the testatorís signature" if the testator signs in the witnessís presence or declares the signature as his or her own. Welch v. Adams, 63 N.H. 344 (1885). Although the self-proving affidavit refers to the witnesses signing in the presence of each other, the statute does not expressly require it. Id.; see RSA 551:2 (IV), 551:2-a;

Though not mandatory, the language for a self-proved will obviates the need for the will to be proven later "in common form," i.e., through in-court testimony or a Deposition in Proof of will. RSA 552:5-b, 552:6. For this reason, it is standard practice to include the self-proving language and have a Notary Public take the acknowledgement of the testator and witnesses.

If the above requirements are met, you have properly supervised the execution of a clientís will.

Answers to questions above:

(1). No. A testator need not execute a will in front of the witnesses.

(2). No. Two witnesses are sufficient for a valid will, and the self-proved affidavit is optional.

(3). No. Any writing intended by the testator to be his or her will is sufficient, in the authorís opinion, whether marked draft or not, and there is no statutory requirement that the testator and/or the witnesses must initial or sign each page.


Haden P. Gerrish



Haden P. Gerrish is principal of the Gerrish Law Office, located at Strawbery Banke in Portsmouth. His practice focuses on trusts and estates, tax and elder law.

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