February 29, 2012
Authored by: Luke Lantta
Since our last review of subscribing witnesses to a will generated a lot of interest, here’s a recent case from Mississippi in which the Mississippi Court of Appeals had to consider whether the notary public who notarized the signature of an attesting witness was, herself, an attesting witness to the will. Here’s the quick answer: she wasn’t.
In Estate of Farr, Nancy Wirick, the daughter of the testator, filed a petition to contest the will and accompanying codicil on the grounds that they were void because they were not attested to by at least two witnesses.
The will was nonholographic and was signed by the testator. The signature of an attesting witness appeared at the bottom of the first page of the will, at the end of the attestation clause, and as the affiant of an “affidavit of witnesses” associated with the will. A notary public notarized the witness’s signature on the “affidavit of witnesses.”
The signature of an attesting witness appeared at the conclusion of the codicil, at the end of the attestation clause, and as the affiant of an “affidavit of witnesses” associated with the codicil. A notary public notarized the witness’s signature on the “affidavit of witnesses.”
The testator’s daughter alleged that both the will and the codicil had not been propoerly executed under Mississippi Code Annotated section 91-5-1, which provides that if a will or codicil is “not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix.”
The statute is pretty clear that there needs to be at least two witnesses to a nonholographic will. The executrix apparently conceded this point, but argued that the notary public served as the second witness. The attestation clause in both the will and codicil, however, contained two signature lines labeled “witnesses” but there was only one signature on the attestation clause to the will and one signature on the attestation clause to the codicil. Furthermore, the Mississippi Supreme Court had previously made clear that there needs to be two attesting witnesses to a will, and that the will be attested by them in the presence of the testator and that such attestation be evidenced by the affixation of their signatures to the document. The notary, therefore, was not an attesting witness under the statute.
Interestingly, at a hearing in the case, the executrix attempted to enter a “Certificate of Subscribing Witness” into evidence for both the notary to the will and the notary to the codicil. In the certificates, each notary certified that she witnessed the testator execute the respective document. The court, however, excluded these certificates from evidence because they were not timely filed under the Mississippi Rules of Civil Procedure. It is unclear whether those certificates, if admitted into evidence, would have made a difference in the outcome of the case.