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Making a Will - Witnesses

You must sign your Will in the presence of two witnesses. Some states require you to actually see the witnesses physically sign the will, while other states only require that they sign the will in your presence. Furthermore, these two witnesses must sign the Will in front of one another and be mentally competent, as a physician would define the term, at the time of signing. Witnesses may be required to testify in court that they were present at the time the Will was signed and that the deceased was mentally competent and under no duress to sign. It is important that you choose witnesses who would be able to perform this important duty if it became necessary.

Courts strictly adhere to the witness requirement for several reasons. First, the presence of witnesses insures that the signature on the will is indeed the testator's signature. Second, the witnesses may need to testify in court that the deceased was mentally competent and under no duress to sign. Since strangers can only testify to a person's competence on a superficial level, you should consider picking witnesses who have known you for a number of years - these witnesses will have much greater credibility in court should the will be contested on grounds of incompetency.

But, in order to avoid conflicts of interest, many states will disqualify witnesses who receive gifts under the will - the idea being that someone who will potentially benefit from the will cannot act as a proper witness. Other states will allow interested parties to act as witnesses, but strike their gifts from the will, or reduce the amount of their gifts. In order to avoid these problems, try and appoint people who know you as witnesses but don't give them property under the will. If you want to show your appreciation for their help, consider giving them a gift during your lifetime (an "inter vivos gift").

Remember, all of will planning is to some extent trying to fix an unknown future, and this planning applies to witnesses just as much as anywhere else. You want to pick people who will be credible and available should your will end up in court. If you do not meet the witness requirement, your will may be invalidated. So, if one of your witnesses pre-deceases you, or becomes unavailable for some reason, you will need to re-execute your will. You can also always have more than two people witness the will, should something happen to one of them.

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