One of the easiest steps that an estate planning attorney can take to try to prevent a will that he drafted from being challenged is to have the witnesses to the will utilize a checklist in order to create a documented record that they observed that the testator had adequate testamentary capacity.
First some background: in order for a will to be valid, the person executing the will (often referred to as the “testator”) must have “testamentary capacity” (which, in most states, is defined as the adequate mental ability to understand his family, his property, the fact that he’s making a will, and how the will disposes of his property).
A problem can arise when an estate planning attorney asks his paralegals, staff members, or others to serve as witnesses to a will that the estate planning attorney reasonably believes could be contested. Usually, the paralegals, staff members, or others will not pay as close attention to the actions and speech of the testator as the estate planning attorney (whether because the witnesses routinely witness scores of wills; because they’re not as familiar with the testator as the attorney; because they’re not aware that the will may be contested, or if they are, because they’re not aware of how serious such a challenge could be; because they have less of an emotional and financial investment in the matter, etc). The problem arises when those witnesses are then asked to recall – in depositions or at trial – the circumstances surrounding the will signing, and their memories are much more hazy than that of the estate planning attorney who also witnessed the signing. Because the timeframe from a will signing to the date of depositions in a will contest case can range from months to years, it’s not difficult to see how a paralegal who has witnessed hundreds of wills in the interval would not be able to recall much of anything about the will signing at issue in the litigation. Certainly, the witnesses will almost always testify that they observed that the testator had testamentary capacity at the time of the will signing (or else they would not have witnessed the will), but on occasion, the witnesses cannot remember any more than that basic fact. At trial, the attorney for the will contestant will pounce on the fact that the witnesses remember little about the circumstances of the will execution.
For that reason, estate planning attorneys should create a checklist for the other witnesses to use at the signing of any will that they reasonably believe may end up being contested. The checklist should contain:
- (i) the name of the witness,
- (ii) the date of the signing,
- (iii) the time of the signing,
- (iv) the location of the signing,
- (v) the names and addresses of all people present at the signing, and
- (vi) a list of the four elements required for testamentary capacity, along with boxes for checkmarks next to each of those elements.
The key portion of the checklist is the four elements required for testamentary capacity (the wording of which will vary slightly from state to state, but which in general can be summarized as the testator demonstrating that he comprehended: (i) his family members, (ii) his property, (iii) that he was making a will, and (iv) how the will disposed of his property).
By having the witnesses execute this checklist, in the event they are deposed months or years later, they will be able to use the checklist to jog their memories as to the facts and circumstances of the will signing. Additionally, the seriousness of the event will be underscored by the unusual practice of needing to complete the checklist, which will further serve to enhance the witnesses’ memories. By being able to testify at their depositions (and at trial if necessary) in greater detail about the facts and circumstances of the will signing, the witnesses will come off as much more credible to a judge or jury compared to if they simply testified that they knew the testator had capacity, but could not recall any details about the signing. Moreover, the checklist itself will serve as a valuable piece of evidence at trial to demonstrate to a judge or jury that precautions were taken by the estate planning attorney at the time of the signing of the will to ensure that the testator had testamentary capacity.