T&E Litigation Newsletter - 5/14/12

May 14, 2012Advisories
In Farrell v. McDonnell, Case No. 11-P-589 (May 11, 2012), the Appeals Court reversed a decree of the probate court disallowing a will on the ground that it was improperly executed.

The co-executors and the testatrix went to a bank for the execution of the testatrix's will. One of the co-executors handed the will to a notary at the bank and then stood off to the side. At trial, the notary could not recall the circumstances surrounding the execution, but she identified her signature and notary seal on the will and testified as to her regular practice, which was to verify a testatrix's identity, have her read the attestation and notarization clause aloud, and have her sign the will, after which the notary would sign in the notary block. Then, the notary would call two witnesses, one at a time, to witness the will in the testatrix's presence.

Like the notary, neither of the witnesses could recall the execution, but they testified as to their regular practices and identified their signatures on the will.

Based on the testimony, the probate court found that the testatrix signed her will in the presence of the notary, and thereafter that the witnesses affixed their signatures to the will in the testatrix's presence but without having seen her sign the will and without having spoken with her. Under these facts, the probate court ruled that the execution was improper because the testatrix had neither expressly nor implicitly acknowledged her signature on the will to the witnesses.

The question on appeal was whether, on these facts, an inference can properly be drawn that the testatrix acknowledged her signature to the witnesses. The Appeals Court answered this "close question" in the affirmative, holding that the testatrix had given her implicit acknowledgment to execute her will by (1) being present when the co-executor handed the will to the notary, (2) reading the attestation clause aloud, and (3) signing the will in the notary's presence. The notary then carried out the testatrix's "declaration" to execute her will according to the statutory formalities by obtaining the two witness signatures, and the testatrix sufficiently acknowledged her signature to the witnesses by remaining seated and watching, without interruption, as each of the witnesses signed.

In support of this holding, the Court explained that a testatrix's acknowledgment of a previous signature to witnesses is equivalent to signing the instrument in their presence.
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