How to Avoid Expensive Improper Execution Litigation By Endorsing And Witnessing Your Will Correctly

A Will must be properly executed to be enforceable. Iowa code holds strict requirements regarding Will drafting and execution. Improper execution disputes generally arise when interested parties suspect someone forged the deceased’s testamentary documents or find that the decedent ignored state law when executing the Will admitted into probate.

Proper Will Drafting and Execution in Iowa

According to Iowa Probate Code 633.279, you must be of “full age” and “sound mind” before executing a Will. Full age means you must be at least 18 years old or married.

Once you meet this threshold, your testamentary documents must adhere to the following state rules so the courts can enforce them after you pass away:

  1. Your Will must be in writing and placed on a hard copy. In other words, you must type your last wishes and testament on actual paper. The courts will generally not enforce audio, video, or digital versions of your testamentary documents.
  2. You must declare that the document you’re signing is your valid Will and that through your signature, you intend to administer your estate assets upon your death.
  3. You must sign your Will or have another person (who you direct to execute the Will on your behalf) sign the document in your presence.
  4. You must endorse your testamentary documents in front of two witnesses.
  5. Neither witness should stand to inherit under your estate plan.
  6. Your witnesses must be of 16 years of age or older.
  7. The witnesses must also sign your Will and acknowledge your signature.

Iowa further allows you to execute a “self-proving” Will. Here, you and your witnesses will endorse your testamentary documents before a notary public.

The courts automatically accept self-proved Wills into probate, eliminating the need to contact witlessness to verify your testamentary documents. This procedure can accelerate the administration of your estate after your death.

Improper Execution Claims

An improper execution lawsuit petitions the courts to invalidate the Will in probate. If the said lawsuit is successful, the courts will either throw out the contested document and replace it with a previous Will or declare the estate intestate.

Beneficiaries or creditors may bring improper execution litigation against the Executor or Personal Representative assigned to administer your assets. This fiduciary would also hold legal obligations to defend the improper execution claims made against your estate after your death.

Forgery and improper witnessing of the Will are the two most litigated claims in improper execution lawsuits.

Forgery and Handwritten Wills: Iowa probate code empowers the courts to invalidate Wills obtained by forgery or fraud. Holographic Wills are handwritten and testator-signed instruments used to substitute testamentary documents prepared by an estate planning attorney.

Currently, Iowa code does not recognize holographic testamentary documents. But the courts sometimes enforce handwritten Wills if they are legible and meet Iowa’s strict execution and revocation requirements under Code Section 633.

Handwritten Wills increase the odds of facing improper execution litigation, especially when a document leaves all or most assets to a single beneficiary at the expense of other heirs. Fraudsters occasionally admit into probate proceedings forged handwritten Wills that comply with Section 633.

Forged testamentary documents may contain counterfeit signatures and/or a forged draft of the entire Will. The law allows the courts to assume forged Wills do not truly express the testator’s intent.

To prevail at trial, improper execution claimants must present testimony from handwriting experts that prove a fraudster forged the printed language found in the Will. Experts may also establish that the testator’s signature is a forgery.

The courts may consider sample evidence of the testator’s handwriting at the time of the Will execution, including examinations of pen pressure, writing angles, stroke lengths, lift points, and stroke direction.

Improper Witnessing: In Iowa, testamentary documents are legally binding only if the testator signs them in front of two witnesses. Why does the law require witness affirmation?

Your Will becomes effective after your death when you’re no longer around to confirm the testamentary documents presented in probate are yours and reflect your true intent. Witnesses who observe your endorsement of the Will can thus affirm in court that the document in controversy is authentic.

Without witnesses, no person can verify the legitimacy of your Will. This situation often provokes expensive improper execution litigation where the courts can reject your testamentary documents entirely.

Remember that only certain persons can witness your Will endorsement—they should be at least sixteen years old and hold the capacity to understand the document you’re signing is your “Will and Testament.”

Conflicts of Interest: The witnesses you choose must also be “disinterested parties,” meaning the individuals should not be related to you by blood or marriage. Nor should your witnesses stand to inherit from your estate.

Accordingly, witnesses who satisfy Iowa’s execution and revocation requirements under Code 633.279 may include friends, business partners, fiduciaries, co-workers, attorneys, or anyone you trust.

Witnessing Action from Beginning to End

Let’s examine the witnessing process from the Will signing ceremony to probate proceedings to understand how problems with witnesses relate to improper execution litigation.

  1. You sign and date your Will in the presence of two uninterested parties over 16 years of age who’ve agreed to attest to your signature.
  2. The witnesses also sign and date your testamentary documents.
  3. Your personal representative, an executor, or other loved one locates your Will after you pass away and files it in Iowa probate court.
  4. The courts thereafter attempt to prove your Will by contacting your witnesses to verify that your Will is authentic.
  5. Your witnesses confirm that: (i) you signed the document(s) in probate; (ii); you were of sound mind during the execution ceremony; and (iii) no person coerced you into signing your Will.
  6. After your witnesses prove your Will, an executor begins to carry out your last wishes and distribute your property among the desired beneficiaries after paying your debts and taxes due.

When considering the probate procedures outlined above, you can see how irregularities in witness execution are relevant to questions of whether a deceased’s testamentary documents are valid and enforceable.

In Conclusion

You must execute your testamentary documents correctly and according to Probate Code 633.279. Otherwise, interested parties may bring expensive litigation against your estate after you pass away. Or, in the worst case scenario, the courts may null your last wishes and subject your estate to intestate asset distribution.

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