Mississippi Supreme Court Holds Witness Must Know Purpose of Will Attestation
, —So. 3d—, 2010 WL 1077441 (Miss.): Witnesses who signed a will identified their signatures on the will, but testified that they were not informed of what they were signing and that the testator did not identify the document as a will when they signed it.
The will contained a Certificate (similar to an attestation clause) and an affidavit of subscribing witnesses (which was notarized), both stating that the testator declared the instrument to be his will and that the witnesses were in the testator’s presence and the presence of each other. The Court (over the dissent of two judges) ruled that the trial judge could properly prefer the evidence of the witnesses at trial over the “Certificate” and affidavit of subscribing witnesses, and that as a matter of law the witnesses must have some knowledge that the document they are witnessing is a will. Thus, the testimony of the witnesses overcame the attestation clause and the affidavit of the subscribing witnesses.
See In re Estate of Griffith, —So. 3d—, 2010 WL 1077441 (Miss.).
Special thanks to Martin D. Begleiter (Ellis and Nelle Levitt Distinguished Professor of Law, Drake University) for providing a summary of this case.