Can I sign a will and how many witnesses do I need?
When it comes to drafting a will in Massachusetts, it is crucial to understand the specific legal requirements outlined in the Commonwealth’s statutes. Massachusetts law permits anyone who is eighteen years or older to create a will. To be legally binding, the will must be written and signed by the testator—or alternatively, signed by another person in the testator’s presence and under the testator’s explicit direction. Additionally, at least two competent witnesses must attest that the testator has declared the document as their own will. This is codified under M.G.L. 190B § 2-502.
Signing your will with two, disinterested witnesses is a critical step to establish its validity. If a will is found to be invalid, the testator (the person establishing the will) will be deemed to have died intestate. The rules of intestacy, rather than the will, will determine who receives the estate. This is often at odds with the testator’s wishes.
Interestingly, Massachusetts law provides flexibility regarding the validity of a will. A written will that conforms either to the law of the place where it was executed or to the law of the testator’s domicile at the time of death is valid in Massachusetts, as specified in M.G.L. 190B, § 2-506.
Previously, the law required that each witness sign the will in the testator’s presence. However, under the Massachusetts Uniform Probate Code (MUPC), this requirement has been relaxed. According to M.G.L. 190B § 2-502(a)(3), it is no longer necessary for witnesses to sign in the presence of the testator, although this practice remains advisable. The MUPC now stipulates that witnesses must either actually see the testator sign the will or receive an acknowledgment from the testator that the document is their will or that the signature on the document is indeed theirs. The comments to the MUPC even suggest that the testator’s signature may be in the form of a mark, nickname, or initials. While there is no explicit requirement for the testator’s signature to appear at the end of the will, placing it there is still considered best practice.
It is also important for attorneys to adhere to proper procedures when notarizing self-proving affidavits. Trust and will attorneys in Marshfield, MA should ensure that both the testator and the witnesses appear physically before them and provide testimony before notarizing any affidavit. Failing to do so and notarizing an affidavit from individuals the attorney has never met can lead to significant legal complications.
Lastly, it is worth noting that Massachusetts does not recognize holographic wills, which are wills that are entirely handwritten and signed by the testator without any witnesses. Such wills are considered invalid under Massachusetts law.
Understanding these nuances can help ensure that wills are drafted and executed in compliance with Massachusetts legal standards, thus avoiding potential disputes or challenges in the future.
If you need help drafting a will, contact our Marshfield estate planning lawyers office at +1 (781) 882-8001 to set a free consultation.