Concerns over witnessing of a will

Bluebayou · 26-02-2019 11:07PM #1

Hi folks

I am an executor of a relatives will, I am not the beneficiary, I have seen the will and immediately something caught my eye, the issue is the following

The will names two beneficiaries, one of the beneficiaries has the same name as their mother, their mother was one of the witnesses of the will. Now The will states bequeath to my two nieces but I’m concerned that because one of the beneficiaries has the same name as their mother and she witnessed the will that will cause a problem?

Spanish Eyes · 26-02-2019 11:53PM

Solicitor will sort it out with ID.

my3cents · 27-02-2019 12:09AM

Spanish Eyes wrote: »

Solicitor will sort it out with ID.

I don't have too much faith in that area. I nearly had problems with my fathers will (might still have) due to an incorrect address and other basic errors.

In this case I would have thought the answer was to make clear the relationship the between the testator and the beneficiaries?

Bluebayou · 27-02-2019 12:28AM

my3cents wrote: »

I don't have too much faith in that area. I nearly had problems with my fathers will (might still have) due to an incorrect address and other basic errors.

In this case I would have thought the answer was to make clear the relationship the between the testator and the beneficiaries?

I don’t have much faith either tbh, You’re correct the will states bequeath to my said nieces of such and such addresses however the signature of the witness is the same name as one of the beneficiaries and I’m thinking how the hell do probate know they are different people?

my3cents · 27-02-2019 12:36AM

Bluebayou wrote: »

I don’t have much faith either tbh, You’re correct the will states bequeath to my said nieces of such and such addresses however the signature of the witness is the same name as one of the beneficiaries and I’m thinking how the hell do probate know they are different people?

Thats a good question but doesn't the witness also have to write their address?

I'm only going by the family wills I have here from the UK and they have signature of the witness their printed name and full address.

I assume that while the names are the same the address is different?

brian_t · 27-02-2019 12:40AM

They hardly have the same signature though.

The one the witnessed the will cannot benefit from the will.

Bluebayou · 27-02-2019 12:10PM

my3cents wrote: »

Thats a good question but doesn't the witness also have to write their address?

I'm only going by the family wills I have here from the UK and they have signature of the witness their printed name and full address.

I assume that while the names are the same the address is different?

Yes I had a look again, you are spot on, the addresses are different however the beneficiary had previously lived at the same address many years ago as her mother who witnessed the will. Am i over thinking this, should the will be rewitnessed?

27-02-2019 12:14PM

Bluebayou wrote: »

Yes I had a look again, you are spot on, the addresses are different however the beneficiary had previously lived at the same address many years ago as her mother who witnessed the will. Am i over thinking this, should the will be rewitnessed?

In order to witness a signature, the witnesses must actually see the person signing their name. In most cases this is done in a solicitors office in front of the solicitor and his/her assistant who then sign to say that this was all in order.

my3cents · 27-02-2019 12:24PM

Bluebayou wrote: »

Yes I had a look again, you are spot on, the addresses are different however the beneficiary had previously lived at the same address many years ago as her mother who witnessed the will. Am i over thinking this, should the will be rewitnessed?

Don't forget the witnesses also have to put the date in next to the signature (unless someone filled that in for them) so it can be shown that at that particular time the witness and the beneficiary were living at different addresses and therefore different people.

I've no legal training and thats just my common sense approach.

Bluebayou · 27-02-2019 12:26PM

[Deleted User] wrote: »

In order to witness a signature, the witnesses must actually see the person signing their name. In most cases this is done in a solicitors office in front of the solicitor and his/her assistant who then sign to say that this was all in order.

The will was witnessed by two people at the same time, not in the presence of a solicitor however, this was done in a hospital, the witnessing of the will was sound and followed correct procedure as instructed by a solicitor however the issue here is the one of the witnesses (the mother) has the same name as one of the beneficiaries and am wondering will this cause a serious problem, the only difference is that both their addresses are different

brian_t · 27-02-2019 12:30PM

Bluebayou wrote: »

the only difference is that both their addresses are different

Surely their signature is different too.

Peregrinus · 28-02-2019 02:11AM

Two people in the same extended family having the same name is extremely common, and this situation or similar situations will have arisen many times.

Let's pretend we;'re dealing with two Mary O'Connors here.

Presumably the Mary O'Connor who is named in the will as a beneficiary is correctly identified in the will. If she isn't, there's a problem regardless of who has witnessed the will. But, precisely because that's such a glaringly obvious problem, it will have been addressed in drafting the will, so she's identified as "my neice Mary O'Connor" or "Mary O'Connor of 1 Grafton Street, Dublin 2" or whatever.

Right. The only question then is, is the witness who signs as Mary O'Connor the same Mary O'Connor as the beneficiary? The facts are that she is not, but will there be any difficulty in showing this? If Mary O'Connor [witness] gives her address as, say, 1 Eyre Square Galway, that's obviously the Mary O'Connor who, at the date the will was executed, lives at 1 Eyre Square Galway. The fact that Mary O'Connor [beneficiary] used to live there is not a problem; why would that Mary O'Connor identify herself by an address she left years ago rather than by the address she now lives it? Esxpecially when there is an entirely different Mary O'Connor now living at that address?

Be sure to document that Mary O'Connor [witness] is a different person from Mary O'Connor [beneficiary]. A note or letter on the file from the other witness will be fine. ("I witnessed the execution of the will along with my aunt, Mary O'Connor of 1 Eyre Square Galway. My cousin Mary O'Connor of 1 Grafton Street was not present and did not witness the execution of the Will.") In the unlikely event that a query arises when the time comes, that note can be produced.

Claw Hammer · 28-02-2019 12:05PM

I witnessed a will a few years ago. After the testator died, I was asked to swear an affidavit stating that I was a person who witnessed the will, that I had seen the testator sign, how I knew who the testator was and that I had spoken to the testator and had a coherent conversation. Trouble might arise if the original witnesses are dead or can't be found or don't have a memory of the event.

my3cents · 28-02-2019 12:22PM

Claw Hammer wrote: »

I witnessed a will a few years ago. After the testator died, I was asked to swear an affidavit stating that I was a person who witnessed the will, that I had seen the testator sign, how I knew who the testator was and that I had spoken to the testator and had a coherent conversation. Trouble might arise if the original witnesses are dead or can't be found or don't have a memory of the event.

In your case it sounds like someone was checking more that the testator was in a fit mental state to sign the will which I personally don't think is the role of the witness.

Claw Hammer · 28-02-2019 12:26PM

my3cents wrote: »

In your case it sounds like someone was checking more that the testator was in a fit mental state to sign the will which I personally don't think is the role of the witness.

They were checking that i was the person whose signature appeared on the will. It is not for a witness to determine if the testator is of sound mind but evidence that witness had a coherent conversation with a testator would be evidence from which it might be concluded that the testator was of sound disposing mind.

Mr. Incognito · 28-02-2019 03:12PM

an Affidavit of Attesting Witness is filed if its an issue.

The Solicitor who drafted the will and took the signature will have that information on their files.

nuac · 28-02-2019 05:06PM

Mod
Title amended for clarity

Peregrinus · 01-03-2019 01:28AM

Claw Hammer wrote: »

They were checking that i was the person whose signature appeared on the will. It is not for a witness to determine if the testator is of sound mind but evidence that witness had a coherent conversation with a testator would be evidence from which it might be concluded that the testator was of sound disposing mind.

If you were asked to attest that you knew the testator, conversed with the testator on the occasion and found his conversation coherent, etc, then, yeah, the testator's mental capacity was the main issue. The initial attestation that you were the person who witnessed the will is simply a necessary preliminary to establish your qualifications to talk about what happened on the occasion; i.e. you were present.

Concerns over witnessing of a will

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