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NEWSLETTER                                                                                                                                          SEPTEMBER 2021

ARE YOU ON THE RIGHT TRACK

I had a home-made will come across my desk this week. The people who brought it in wanted to know is it was valid. I had to burst their bubble for it didn’t comply with the statutory requirements governing the execution of wills.

While it was typed up and notarized, it was not witnessed by two competent witnesses. There were no witnesses. We had to file an administration to distribute the decedent’s property pursuant to the intestate succession. Just so you know, if a witness to a will is competent at the time of his or her attestation, his or her subsequent incompetency shall not prevent the admission of such will to probate.

Here is another problem that came across my desk the same week. Any person of sound mind, and possessing the rights of majority, may dispose of any or all of his or her property by will. But in order to do so, the will has to be offered or preserved for probate by filing it the District Court within six months of the date of death. If not, there’s not going to be a probate of the will and the decedent’s property may wind up being distributed pursuant to the laws of the intestate succession which could possibly be adverse to the provisions of his will.

Any person having possession of a will who knowingly withholds it from District Court for more than six months after the decedent’s death, shall be liable for reasonable attorney fees, costs and all damages sustained by the beneficiaries under the will who did not have possession of it, knowledge of its existence or access to it. I had a case in which one

child did this and after six months produced the will for his other siblings. Too late. It cost him a pretty penny for doing so. The next time I see him I must thank you for paying my fee.

You would be surprised as to the number of wills I draft that disinherit children for any number of reasons. Don’t get cute by stating in your will that you are leaving $1.00 to a child. You may possibly be creating a potential will contest when that child comes in and says it should have been $10,000.00. If you want to disinherit a child then acknowledged their existence, state you are disinheriting that child and move on down the road. You do not have to state the reason for doing so. Children do not have a right to inherit from their parents.

I am starting to ramble so let me wrap this up. An oral will made during one’s last sickness shall be valid in respect to personal property only, if reduced to writing and subscribed by two competent, disinterested witnesses within 30 days after the speaking of the testamentary words, when that person called upon someone present at the time the testamentary human words were spoken to bear witness to said disposition as his or her will.

Thanks for putting up with me.

Mike

“I was taught that the way of progress is neither swift or easy.”

-Marie Curie-

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Post Author: Elder Law

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