That lawyer stuff at the end of the will

When you last signed a will, you might have noticed that after the main part of it, there was a bunch of added legal stuff. This is about that all-important added legal stuff.

(Wait, you have signed a will before, right? Right? Please tell me you have. If not, quit reading this and go call a lawyer.)

At the end of a properly-drawn will, following the signatures of the testator and the witnesses, there is typically a page or so of additional legalities, and then another set of signatures, followed by a notary stamp. This last part of the will is called a “self-proving affidavit”, and it is very important to have.

The self-proving affidavit shifts the burden of proof. If you don’t have a self-proving affidavit, and somebody challenges the will, the burden of proof is on the executor, who has to prove that the will is valid. That can be difficult, especially if it has been years since the will was signed, and the witnesses don’t remember anything about it. If the executor can’t come up with some other way to prove this was a valid will, the will is thrown out.

But with the self-proving affidavit in place, the disgruntled heir who is challenging the will, has to prove that it wasn’t validly signed. So if the witnesses don’t remember, the challenger has to come up with some other way to prove that the will is a forgery, or that the testator wasn’t competent, or was under pressure, or something which would justify throwing it out. If he can’t come up with anything, then the challenger loses and the will stands.

I have had a number of cases in which the self-proving affidavit became a critical element of the case, but none I’ll remember more than a contested probate I handled years ago.

This one had been nasty from the git-go. The lady who had died had a live-in boyfriend. After she died, one of her daughters wrote to the boyfriend, asking for her mother’s personal effects. He shipped her only one item: the toilet seat that her mother had died while sitting on. It was a particularly mean and hurtful gesture. Even though this was not a substantially large estate, following the toilet seat incident, there was no way this case would ever settle.

The boyfriend produced a will, which said that everything was given to him. It was not done by a lawyer, it was one of those stationery store jobs where you fill in the blanks. It was signed in front of two witnesses, and there was a self-proving affidavit. The daughter, looking at it, did not believe that was her mother’s signature. At that point she hired me to challenge the will.

In any case involving an allegation of forgery, the key witness is the handwriting examiner. We got together a bunch of comparable signatures. These were signatures that the deceased had made on other documents, such as checks, where there was no doubt that was a real signature. The examiner looked at our copy of the will, and at all those comparable signatures, and told us that he believed the will was a forgery.

At this point the case looked pretty strong, but it still wasn’t going to be easy. We were going to have to fly this handwriting examiner to Alaska to testify at the trial, and that was going to be pricey. On top of that there was the anticipated cost of the trial itself (the biggest cost being attorney fees), and then there was always the risk that something could go wrong at trial and we could lose. If we won, we might be able to persuade the judge to award us costs and attorney’s fees against the boyfriend, but if the boyfriend wasn’t inheriting anything, he wasn’t going to have the money to pay that judgment.

And then one day, as I was looking through the file and thinking about what we should do next, I noticed a little detail that I had not seen before. Yes, there was a self-proving affidavit. Yes, it was signed and stamped by a notary public. Notary commissions have to be renewed every few years, and the notary stamp indicates when the current commission expires. I looked at the date the commission expired. I looked at the date the will was signed. I blinked, and looked again.

The notary commission had already expired when she notarized the self-proving affidavit. The self-proving affidavit was invalid!

The will still could have been “proved up”, but now, without a valid affidavit, the burden of proof was on the boyfriend. The witnesses were two neighbors. Nobody could find one of them, who had apparently moved out of state. This was back before the internet made it relatively easy to track somebody down.

But the other witness was located, and he still lived in the area. As a precaution, I scheduled a deposition, and had him served with a subpoena to appear. As it turned out, it was the shortest deposition I ever took.

He sat down. He identified himself. The court reporter asked him if he would tell the truth, the whole truth, and nothing but the truth.

He said “no”.

In more than 30 years as a lawyer, I have never had that happen before, or since.

After a bit more discussion, we determined that he was actually attempting to assert his Fifth Amendment right not to testify.

The lack of a valid notary stamp (since the commission had expired) meant that the self-proving affidavit was not valid. The lack of a witness who was willing to testify to having seen this lady sign this will, meant that the boyfriend could not meet his burden of proof. As a result, we won the case on summary judgment. We didn’t have to go to trial, and my client didn’t have to pay attorney fees or the cost of flying the handwriting examiner to Alaska. The will was thrown out, and the boyfriend got nothing.

There are two morals to this story. One is that having the proper technicalities on any kind of legal document can be critically important. The other is that mean-spirited gestures after someone dies can get you into a lot of trouble. Had the boyfriend not sent the daughter the toilet seat that her mother had died on, he probably would have been able to swing a reasonable settlement.

Instead, he got squat.

Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult an estate planner who can take all the facts into account. And while you’re there, get that will signed, okay?

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