The Fordonski doctrine reminds estate dispute attorneys of how important witnesses are in will-signing ceremonies and why it’s essential to have their signatures appear both on the testamentary document itself and on supporting affidavits.
Testatrix Forgets to Have Witnesses Sign Her New Will
In 1995, Blima Fordonski executed a will that left $10,000 to an heir. However, five years later, she changed the document, effectively disinheriting the beneficiary.
Blima’s new testamentary document included her signature but was missing two witness endorsements.
For some unknown reason, Blima paired an affidavit of execution with her new will that affirmed two witnesses observed the testatrix sign the document and that the parties’ signature in the affidavit replaced the signatures in the will, a norm that satisfies Iowa’s “self-proved will” rules under Code section 633.279(2).
The disinherited beneficiary entered will dispute litigation in 2002 after Blima’s death, claiming the testatrix’s witnesses did not properly attest the new will and the self-proving affidavit alone cannot replace a proper signing of the will under Iowa law.
The Court ultimately held that under the circumstances in Blima’s case, “the signatures of the witnesses appearing on a self-proving affidavit attached to the will may satisfy the requirements for witness signatures contained in Iowa Code section 633.279.”
Now, wouldn’t it have been simpler (and less costly for all parties) if Blima’s witnesses had just signed her modified will?
The Smith Law Firm wants to help you avoid making a “Blima” mistake when executing your Last Will and Testament.
Let’s examine some Q&As on how to conduct an indisputable will-signing ceremony for protecting your testamentary documents from unmerited improper execution allegations during probate.
- Why are will-signing ceremonies important?
You should always perform a will-signing ceremony to formalize your estate planning instruments. Doing so ensures your testamentary document and its witnesses will speak for you in your absence should an interested party challenge your will after your death.
When properly executed, will-signing ceremonies prove your testamentary document is authentic, reflects your intent, and you held legal capacity when you planned and signed it.
- Who are ceremony witnesses?
Witnesses are individuals who actively take part in your will-signing ceremony. They must be mentally competent and at least 16 years of age, according to Iowa probate code §633.280.
- What roles do witnesses play in will-signing ceremonies?
Witnesses will attest that you intended to execute your will and did so with a sound mind. Your witnesses must therefore be present at the will signing and observe your actions during the process—this also holds true if you modify your will later on.
- What can witnesses do for you in estate dispute litigation?
If during probate a will challenger should claim you improperly executed your testamentary documents, your witnesses can testify to the following on your behalf:
- Your identity.
- You intended to plan your estate.
- You wished to convey assets after death.
- You held legal capacity to execute the will.
- How many witnesses do you need in Iowa?
Probate code §633.279 affirms legally valid wills require at least two witness signatures. You should however consult with an estate planning attorney to determine if your particular testamentary documents need supplementary witness support evidence.
- When do witnesses sign the will?
To finalize a valid will in Iowa, you must sign the legal document in the presence of two witnesses and your witnesses must immediately endorse it afterwards, verifying that you actually executed the document.
Avoid making a “Blima” mistake during your will-signing ceremony (and dodge expensive will dispute litigation costs during probate)—make certain your testamentary documents have two valid witness endorsements just below your signature.
- Can beneficiaries be witnesses?
Iowa probate code §633.281 allows a person who holds a financial interest in the will to witness the document, but the courts would limit the interested witness’ inheritance to only the amount they would have taken under intestate succession laws (testator passing away without a will).
- Do I need a notary public?
You do not need to notarize your Last Will and Testament in Iowa. State probate codes do however allow you to execute a “self-proving” will, in which case you will require a notary public to affirm an affidavit of execution to pair with your testamentary documents.
A self-proving will not only safeguards your intent to convey assets against improper execution claims, but it also allows a probate court to accept your testamentary documents immediately after death because the judiciary will not need to contact witnesses to corroborate the will’s validity.
Witnesses who sign self-proving affidavits swear they observed you sign the will and that you held a sound mind when you executed it.
- Do I need to say anything at the will-signing ceremony?
Will-signing events are all about declaring your estate planning objectives in front of people who can reaffirm your intent if someone should question it after you pass away.
This means yourself, your witnesses, your attorney and a notary public should all be present at the will-signing ceremony.
You will need to explain why you gathered everyone at the event and verbally let the witnesses know they are there to watch you sign your will.
You should likewise describe the contents of the affidavit of execution to the witnesses and declare the following statements to the entire room:
- The document you’ll be freely signing is your Last Will and Testament.
- You are of sound mind and no one has pressured you into executing the will.
- You have reviewed the will, understand it completely, and the document reflects your intent on how you want to leave your estate.
Making these formal statements may seem awkward, but doing so will only protect your estate and may ward off a will challenge when your testamentary documents enter probate.
- More on Affidavits of Execution
Remember, we opened this article examining how Blima Fordonski executed her will modification by paring her testamentary documents with a self-proving affidavit.
Unfortunately for her beneficiaries, Bilma’s witnesses only endorsed the affidavit which led to two years of costly will dispute litigation, dramatically reducing all parties’ inheritances after the estate paid legal fees to resolve the matter.
Had Blima paired her affidavit of execution with a properly signed will, her estate would have sped through probate and no improper execution allegations would have held standing.
The message here is—even though executing a self-proving affidavit is optional, and it doesn’t make your will any more valid, just do it anyway.
Trust the go-to probable litigators in Iowa when we say…
“Paring an affidavit of execution with your testamentary documents may save your estate lots of money in the long run.”