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by
Thomas Munthali, 10 December 2006
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05:41:45
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Witnesses to the will and identifying the testator
Having a will isn’t much good if nobody can tell that it is yours. Therefore, a basic legal requirement for wills is that they clearly identify the identity of the testator.
This week, we will discuss how we can make the Will identifiable against the testator and the important role witnesses can play in authenticating a Will. The identity of the testator is established at various points in the Will. Other than having a video recorded at the point of making the Will, which may be costly and possibly beset with technical incapacities for an average Malawian, your identity in the will is established:
—Directly by stating your full name at the beginning of the Will;
—Indirectly by providing supplemental information such as your address, next of kin at the time the will is made, the date, and the district/city where the Will is being executed;
—Directly via your signature (also known as executing the Will – your Will is not executed until you append your signature); and
—Indirectly by having your Will witnessed by at least two disinterested parties (witnesses – we will allude to these more later).
In some countries, a handwritten or holographic Will is accepted as being self-authenticating. Such a Will has to be written entirely in the testator’s handwriting, which helps in identifying it as the testator’s Will. Because it is considered self-authenticating, a holographic Will does not have to be witnessed. From a practical perspective, however, holographic Wills should be avoided at all costs. At best, they cause needless hassles during probate because it still must be established that the handwriting is indeed that of the testator. At worst, a holographic Will is useless if your handwriting is illegible or it turns out to be a forgery after a costly Will contest.
On the other hand, in Malawi, lawyers will often advise for a Will to be witnessed by at least two disinterested persons. The witnesses, like the testator, must be of sound mind and body and be at least 18 years old. At the same time, a witness should not be someone who stands to benefit under the terms of the Will because of the inherent conflict of interest involved.
It doesn’t hurt to include an extra witness and it is highly recommended that you do so. Being a Will’s witness is not a mere honorary role. Instead, a witness may be called on to testify or otherwise support the authenticity of the Will. As such, it’s always good to have a spare witness to rely on in case the other witnesses become unavailable.
In a similar vein, the witnesses of your Will should be clearly identified in the Will itself. In addition to their signatures, their printed names and addresses should be listed. It doesn’t do much good if you have a witness, but can’t tell who it is from just an illegible signature.
It is recommendable that each witness, the testator, and any person signing on behalf of the testator are all present during the entire proceedings for executing the will. State laws may differ on this issue, but each witness must generally either see the testator sign the will or hear the testator acknowledge that the signature they are seeing is that of the testator.
To ensure the authenticity of a Will’s contents, attorneys commonly number the pages of the will consecutively (e.g., 1 of 10, 2 of 10, etc.). The testator and the witnesses then initial each of the pages after they are bound together. This is not a legal requirement, but it helps prevent Will pages or a provision being slipped in after the testator has already signed it.
—Feedback: tbmunthali@yahoo.co.uk |
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