The Mississippi Supreme Court recently issued an opinion emphasizing the importance of strict adherence to legal formalities when executing wills. In the case of In re: Griffith, the court upheld a trial court's strike of the will as invalid because the 2 witnesses to the document testified at trial that they did not realize he was a "will" they were witnessing. Specifically, they did not deny that it was their signature, or even that they signed it under oath, but instead state only that they thought they were signing a power of attorney. The Mississippi Supreme Court specifically looked at the issue of whether a witness to a will was required to know it was a "will"that they were witnessing, or whether the act of witnessing a non-incapacitated individual signing something was sufficient. The court, looking at both the strict language of the wills statute, together with conflicting decisions in Mississippi law dating back nearly 100 years, concluded that the witnesses' knowledge of what they were witnessing is a prerequisite to the validity of a will. Specifically, the court held:
"We find that Mississippi Code Section 91-5-1 requires that attesting witnesses to a will know the purpose of their attestation, even when the testator signs the will in their presence. As noted in our prior cases, either formal or constructive publication will ensure that this knowledge is imparted to the attesting witnesses."
This case illustrates the importance of strict adherence to formalities when executing wills. Here, the individual testator went to the trouble of drafting a will, which in all ways was apparently a valid instrument under Mississippi law, and further went to the trouble of not only having the document witnessed by the required 2 witnesses, but also had those witnesses signatures notarized, which was a statement under oath that the witnesses acknowledged that the instrument was declared to be a will, and was signed by the testate or in their presence. Nonetheless, despite following all of these formalities, and in the absence of any evidence reported in the case that the testate or lacked capacity to execute a will, the Mississippi Supreme Court struck down an otherwise valid instrument strictly on technical grounds that the witnesses' oral testimony was that they didn't know it was a will that they were witnessing.
One must wonder if the result would have been the same had the instruments been witnessed at a lawyer's office instead of the bank. While the decision does not explicitly state this was a "do-it-yourself" will, the fact that the document was witnessed and notarized at a bank leads one to that conclusion. More frequently than not, the challenges that we seek to these "do-it-yourself" documents is not the language of the documents themselves, which are almost always adequate, but rather the failure to follow a simple formality, such as in this case. The testator in this case may have well saved $500 or more by self drafting his will, and exchanged that savings for invalidating his entire last wishes for how his estate would be handled. The end result in this case was an equal distribution of his estate to his children under Mississippi's intestacy laws. In his will, he expressed a desire to favor certain individuals over others, but those desires will now be completely moot. Most would concede that such a trade-off is no bargain.
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