answersLogoWhite

0


Best Answer

United States

The quick answer to your question is:

In the best of circumstances, a witness to a will shouldn't benefit from the will. This could create a conflict of interest. A person witnessing a will should not have an interest in the will as a beneficiary, trustee or executor and should not be related to the testator either by blood or by marriage. Generally, a trust created in a will is called a testamentary trust. In the US, a trustee of a will is a testamentary trustee. A living trust that has testamentary aspects should be executed with the same formalities as a will in the state where the document is executed. State laws are not uniform. Therefore, an attorney who is familiar with the laws of your state should always be consulted.

This is a complicated and multi-faceted topic. The following is a brief discussion of different aspects of witnessing a legal document and is not intended as legal advice. It is important to remember that the purpose of having a properly drawn and executed legal document, especially a testamentary document, is to make the document enforceable and able to withstand challenges of undue influence. There is no simple, uniform rule that is followed by every jurisdiction. Competent witnesses are an integral part of that process and the person drafting legal instruments must do their homework to make certain the document is properly drafted and executed.

Wills

There are two issues that arise concerning the importance of choosing competent witnesses to a will. First, improper witnesses can still render the will invalid in some jurisdictions or affect the gift to a devisee who witnessed the will. Second, although interested persons can witness wills in some states without making the will invalid, in some cases interested witnesses can make the will vulnerable to a challenge of undue influence and probate is a common arena for contentious family squabbles over estates.

At common law a witness to a will could not be a beneficiary. That error would invalidate the will. That harsh treatment was later mitigated by voiding only the gift to that beneficiary or limiting it to an intestate share. That treatment has been further reduced by some state laws, and the Uniform Probate Code, so that a will is valid and the witness-beneficiary suffers no penalty. However, the spectre of undue influence can still rear its ugly head when any person who benefits from the will is also a witness. By that same argument an executor or testamentary trustee who also witnessed the will would leave the door open for later challenges to her/his appointment. Remember, the main objective of proper execution is to make the will strong enough to carry out the testator's wishes.

Most states require two witnesses. Many states require that the witnesses be unconnected to the will. Some states allow an interested party to act as witness but then require that two additional witnesses (that makes three) who are not interested parties also witness the will. In a couple of states a beneficiary-witness must be accompanied by at least two disinterested subscribing witnesses (that makes three) or the gift to that beneficiary will be void. In other states, the interested beneficiary-witness will only receive an intestate share regardless of the testamentary gift unless there are at least two additional disinterested witnesses.

A Uniform Probate Code has been in the works since around 1969. Although it was meant to simplify the probate process in the US it will never be completely successful because only nineteen states have adopted it and of those nineteen some adopted it with modifications. Other states have adopted only parts of the code. Some states have strong opposition to its adoption because some think it encourages a lack of supervision and overturns existing laws that created stronger protection for estates. There is always a good argument against watering down legal formalities. Those states may not abandon their stricter statutory provisions regarding estates. In addition, freestanding acts developed from the UPC have been proposed as an alternative to adoption as a whole.

Of course, all this modification and adoption-in-part makes the Uniform Probate Code not uniform throughout the states that have adopted it. A good example of its easing up on the rules is the following section.

Uniform Probate Code

Section 2‑505. Who May Witness.

  • (a) An individual generally competent to be a witness may act as a witness to a will.
  • (b) The signing of a will by an interested witness does not invalidate the will or any provision of it.

That section includes some very interesting (and ironic) comments that both acknowledge the old formalities, illustrate the ambiguities that can arise in choosing competent witnesses and may reveal some one-sided argument for reducing the formalities:

  • Of course, the purpose of this change is not to foster use of interested witnesses, and attorneys will continue to use disinterested witnesses in execution of wills. But the rare and innocent use of a member of the testator's family on a home‑drawn will is not penalized.
  • This approach does not increase appreciably the opportunity for fraud or undue influence. A substantial devise by will to a person who is one of the witnesses to the execution of the will is itself a suspicious circumstance, and the device might be challenged on grounds of undue influence. The requirement of disinterested witnesses has not succeeded in preventing fraud and undue influence; and in most cases of undue influence, the influencer is careful not to sign as a witness, but to procure disinterested witnesses.

When we consider the various factors as presented above there is one over-riding fact: State laws are not uniform. An improperly drafted and executed will can result in the will being thrown out completely in some jurisdictions and the decedent's property distributed as though there was no will. A poorly drafted and executed will can make the will vulnerable to challenges of undue influence by disgruntled family members in most jurisdictions and a successful challenge can cause significant changes to what the testator originally planned.

Since the laws in different jurisdictions vary and the Uniform Probate Code has not been uniformly adopted in every state and is not "uniform" in its adoptions, and people do not always keep abreast of the law, the best course is still to follow the fundamental rules of good legal practice which include:

  • A person witnessing a will should not have an interest in the will as a beneficiary, trustee or executor and should not be related to the testator either by blood or by marriage.
  • A testator should have their will drafted by an attorney who specializes in probate and who is familiar with state laws.

Trusts

Trusts have become increasingly popular as a way to bypass probate. As a result, conflicts between trustees and beneficiaries have also increased, many resulting in litigation. A trust transfers title to property to a trustee thereby giving the trustee complete control over all the assets of the trust. Good legal practice dictates that a Declaration of Trust should not be witnessed by the trustee.

A living trust that has testamentary aspects should be executed with the same formalities as a will in the state where the document is executed. As with wills, a witness-trustee may cause the trustee to become vulnerable to a challenge of undue influence. If the trust holds real estate located in another state it may also need to meet the requirements of the state where the real estate is located.

Trusts should be drafted by an attorney who specializes in trust law, estate planning and probate law.

User Avatar

Wiki User

13y ago
This answer is:
User Avatar
More answers
User Avatar

Wiki User

8y ago

No. The witness must be someone who is not a part of the will nor entitled to anything from the will.

Also wills have executors not trustees.

This answer is:
User Avatar

User Avatar

Wiki User

13y ago

No. Only the testator (the person to whom the will belongs) can change it.

This answer is:
User Avatar

User Avatar

Wiki User

13y ago

"Should"?

There MUST be witnesses. A will without witnesses is not valid.

This answer is:
User Avatar

User Avatar

Wiki User

15y ago

No. Anyone with an interest in the estate cannot witness the will.

This answer is:
User Avatar

User Avatar

Wiki User

15y ago

A witness to a will should be a completely disinterested person to avoid any future contests to the will.

This answer is:
User Avatar

Add your answer:

Earn +20 pts
Q: Can the wife of a beneficiary be a witness to a will?
Write your answer...
Submit
Still have questions?
magnify glass
imp
Related questions

Can my primary beneficiary be executor?

Yes. However, they should not be a witness to the will.


Can a beneficiary also be a testator?

The maker of a will should take every precaution so as to make the will not vulnerable to challenges. The witnesses should not be related to you, and should not be a beneficiary. You should pick objective witnesses instead of a beneficiary, spouse or other relative.Yes, in many states a witness to a will may also be a beneficiary. In some, a witness may not be a beneficiary. Depending on the state's laws, a witness-beneficiary might forfeit whatever he/she receives under the will, or, the witness-beneficiary might forfeit only so much of what he/she receives in the will that is in excess of the amount he/she would have received in absence of a will. The old rule used to be that a will witnessed by a beneficiary was completely invalid. That thinking changed over time because it is too harsh a remedy and is unfair to the decedent and to the other beneficiaries. Sometimes it is impossible to avoid having a beneficiary be a witness, such as when a person is on his/her deathbed and only a spouse or children are present to witness the will.Still it is a good idea to avoid the situation if possible as it invites will contest litigation.


Can my sister as the executor be a beneficiary?

No. Only the court can appoint an executor. You could petition the court to name your sister as co-executor but make certain you provide a good reason to support your request.


Can a wife be a beneficiary to a will?

no she can only benefit from making a sandwich


Can you contest a life insurance beneficiary change?

The owner of a life insurance policy has the right to choose the beneficiary. Another person has no power to change that choice.


Who receives the money from life insurance if the beneficiary is deceased the insured or the heirs?

The contingent beneficiary, if one was named.


Does estate money belong to both husband and wife?

An inheritance by either a wife or her husband is not the property of the other. An inheritance is the sole property of the beneficiary who inherited it.An inheritance by either a wife or her husband is not the property of the other. An inheritance is the sole property of the beneficiary who inherited it.An inheritance by either a wife or her husband is not the property of the other. An inheritance is the sole property of the beneficiary who inherited it.An inheritance by either a wife or her husband is not the property of the other. An inheritance is the sole property of the beneficiary who inherited it.


Can ex-spouse collect deceased husbands insurance if first deceased wife name is still listed as beneficiary?

No, an ex-spouse can't collect a deceased husbands insurance if the first wife is listed as beneficiary even if the fist wife is now deceased. The money will go to the beneficiary's heirs.


I am the second wife my husbands original life insurance policy names his first wife as beneficiary which was never changed can i protest the payout?

You can protest but the insurance company will pay the proceeds to the named beneficiary.


Can you contest the beneficiary on your husbands life insurance?

No, you can get him to change the beneficiary and then the money that is claimed will be yours if it has been changed by your husband to your name.


Can the executor also notarize the will?

You don't notarize a will, you notarize a signature, such as witnesses to the will. Yes, in most places an executor can be a witness and have their signature notarized. There are sometimes problems when a beneficiary is also a witness.


Can husband collect life insurance if wife dies unexpectedly?

If the husband was the named beneficiary of the policy, if the policy was in force at the time of death, and if the cause of death was not excluded by the policy, the general answer is "Yes". If the beneficiary was the estate of the wife, the proceeds are paid to the estate. Then, if the husband was a beneficiary of the estate (either by virtue of a Will naming him as beneficiary, or if no Will, through the laws of intestate succession), he may be entitled to all or a part of the insurance proceeds. If the beneficiary of the life insurance policy was someone other than the husband as of the time of the wife's death, proceeds are payable to that person.