AnalysisIn 2008, the National Conference of Commissioners on Uniform State Laws (NCCUSL) amended its Uniform Probate Code. Among the important revisions was a significant change in how a will is usually executed. In most states, a will must be in writing, signed by the testator in the testator’s own handwriting and witnessed by two attesting witnesses. According to the legislative comment provided by the Reporter to the UPC amendments, cases have begun to emerge where an attorney failed to notice that one or more witnesses to a will unintentionally did not sign the will. The oversight often occurs when the attorney prepares multiple estate planning documents, including a will, durable power of attorney, health-care power attorney and perhaps a revocable trust. Most of these other documents are routinely notarized, so the drafters of the amendments to the UPC felt that it would reduce confusion and chance for error if the will was notarized along with these other documents. In addition, lay people often erroneously believe that notarization validates a will. The amendments to the UPC also clarify that the procedure for “self-proving” a will applies only to wills that are executed with two witnesses present and not to wills that are acknowledged. Finally, the amendment grants what is known as a “rebuttable presumption” that a will satisfies the requirements of execution upon filing the will. This is important because in probate proceedings involving a contested will, a clear and convincing standard of proof that the will has been executed properly must be met. The rebuttable presumption granted to an acknowledged will dispenses with this requirement, absent of evidence of fraud or forgery.
The amendments to the UPC in House Bill 1072 are of great significance to Notaries Public and a recognition of the value and integrity of the notarial process.
Read House Bill 1072.