Interested parties, whether beneficiaries or unnamed family members, concern themselves primarily with the question: “Who gets what?” With a valid will, they know the answer.
Generally, under Kentucky law, wills require twoof witnesses who attest in the individuals’ presence that the documents are what they claim to be.
Witnesses to a will remain subject to state law. Generally, minimum requirements include capacity (being over 18 or an absence of mental or physical impairment) and an absence of direct interest in the will – for instance, a beneficiary named in the will cannot serve as a witness.
These requirements leave coworkers, neighbors and even distant relatives as possible witnesses. Most importantly, all witnesses must verify that the document exists and that the authors have signed them in their presence.
Physical presence and acknowledgment essential
A recent court case emphasizes the significance of witness attestation and how failure to comply can affect the beneficial interest of a spouse.
In 2005, a married couple from Kentucky purchased last will and testament forms and signed them in Tennessee. Upon return to Kentucky, the husband’s sister and son signed the document. In 2014, the husband’s four children filed suit against the wife to set aside the will in violation of Kentucky’s witness requirements.
The court ruled the wife failed to satisfy two requirements. First, two credible witnesses did not appear in the presence of her husband as he signed. Testimony evidence stated that the husband did not sign in the presence of either his sister or son. Furthermore, the wife admitted she did not observe her husband sign the document at either location.
Second, her husband neither signed nor acknowledged the will in their presence. His sister and son testified they signed a paper on instruction without explanation. Thus, the court used the relevant statute to reject the wife’s argument of substantial compliance.
As legal documents, wills require a process to ensure their validity. The failure to comply with state requirements can alter the financial future for beneficiaries and create new issues for the estate. Attorneys who understand the law can offer guidance.