Idaho Court Rules After Death Attestation Effective

The following discussion of In re Estate of Miller (Idaho Supreme Court 2006) is provided by Dennis S. Voorhees, attorney for the successful litigant in the case:

A continuing issue has been whether a witness to a testator’s will execution can subscribe his/her name to the will after the testator dies [under UPC 2-502]. This summer the California Supreme Court (in a non-UPC case – In re Estate of Saueressig, 138 P.3d 201, 44 Cal. Rptr. 3d 672 (Cal. 2006) said “no.” 

Professor Gregory Alexander (Cornell) and Professor Mary Fellows (Minnesota) have criticized UPC-jurisdiction court decisions that have either said “no” to post-mortem witness subscriptions or to court-imposed requirements that the witness subscription be done within a “reasonable time” (Estate of Peters – NJ) after the testator signs. * * *

Yesterday, the Idaho Supreme Court became the first UPC-jurisdiction court to line up with the Alexander-Fellows view that the UPC does not impose a time limit on when a witness to a will execution may subscribe to the instrument.  * * *

Heretofore, the states of OR, NE, MI, CO, UT, AZ, and CA said “no” to post-mortem witness subscriptions. NJ said “yes” if within a reasonable time, 18 months being “too long”.  The “Miller will” proponent had no court authority to point to in advocating a “no time bar” restriction on post-mortem witness subscription, but was sustained throughout by the vision of UPC principal author Richard V. Wellman, who sought a code that served “the interests of a state’s citizenry”.  Idaho was the first state to enact the UPC (1971).

On other hand, decisions such as this may open the door to all sorts of shenanigans as instruments which were not witnessed because the testator had a change of heart are turned into wills after the testator is powerless to express his or her desires.  In this case, the testator lived four years after he signed the alleged will and the second witness attested ten days after the testator died.