THE ROLE OF THE SUBSCRIBING WITNESS

December 4, 2012 § Leave a comment

In the MSSC decision in Estate of Holmes, decided November 29, 2012, there was a proceeding for solemn probate. The two subscribing witnesses were called to testify, and their testimony established that: they did not know they were witnessing a will; they that the testator did not request that they witness a will; and that they did not satisfy themselves that the testator was of sound and disposing mind when she executed the will. The MSSC reversed the chamncellor’s decision admitting the will, holding that the subscribing witnesses did not satisfy the requirement of “attesting” witnesses.

Justice Dickinson’s opinion states, beginning at ¶ 10:

Mississippi law empowers “[e]very person eighteen (18) years of age or older, being of sound and disposing mind” to make a will which, if not “wholly written and subscribed” by the testator, must be “attested by two (2) or more credible witnesses in the presence of the testator or testatrix [MCA 91-5-1]. The attesting witnesses must meet four requirements: First, the testator must request them to attest the will [Green v. Pearson, 145 Miss. 23, 110 So. 862, 864 (1927)]; second, they must see the testator sign the will [Matter of Jefferson’s Will, 349 So.3d 1032, 1036 (Miss. 1977)]; third, they must know that the document is the testator’s last will and testament [Estate of Griffith v. Griffith, 20 So.2d 1190, 1194 (Miss. 2010)]; and finally, they must satisfy themselves that the testator is of sound and disposing mind and capable of making a will [Matter of Jefferson’s Will, Id.].

¶11. These formalities associated with attesting a will are important, not only as safeguards against fraud by substitution of a different will than the one signed by the testator, but also to make sure a person executing a will is of sound and disposing mind.

And this at ¶ 14: “One may not witness a will in ignorance.”

I would say that most of us who have ever prepared simple wills as a routine matter for clients have not paid heed to the exacting requirements that are imposed on subscribing witnesses by operation of the case law in this area. But, as this case illustrates, it is worth re-examining how you select and instruct your subscribing/attesting witnesses as to their duties, and, more importantly, how you document what it is that they are witnessing. By that latter point, I mean to suggest that you might want to scrutinize that subscribing witness affidavit form that is fossilized in your comouter and which you have been using for more than 35 years, to see whether it is stout enough to pass muster in a trial of this sort, and whether it would help jog the memory of the witness to the extent that the witness’s testimony would be helpful.

Justice Pierce’s dissent raises some good points about the prudence of requiring witnesses, some of whom performed their duties decades before, to have almost perfect recall of the events surrounding the subscription of the document. I know that I have been asked several times to recall events surrounding similar transactions, and I have found my memory murkily general and unhelpful, at best. Imagine a lay person who is not familiar with all of these legalities and their import being asked similar questions.

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