Estate Planning

Uniform Probate Code Authorizes Notarized Wills

By David M. Goldman

The UPC or Uniform Probate Code has been modified to accept a Notarized Will as valid. Lawrence W Waggoner, wrote an article "The UPC Authorizes Notarized Wills", 34 ACTEC 83 (Fall 2008). (This article was brought to my attention by Gerry Beyer of the Wills, Trust & Estate professor Blog)

The article begins by reviewing the history of attested wills which were derived from the English Statute of Frauds Act of 1837. The requirements state that the will must be (1) in writing, (2) signed by the testator, and (3) witnessed by attesting witnesses. The UPC also popularized the concept used in Florida of self-proved wills. A self-proved will allows the testator to execute a will and attach an affidavit to the will, notarized and signed by the testator and the attesting witnesses.

In 1990- the UPC adopted another new concept, the harmless error rule. Under the harmless error rule, a will that does not strictly comply with the statutory requirements for an attested will is treated as if it had been properly executed if the will is proved by clear and convincing evidence that the decedent intended the document to be his or her will. So far Colorado, Hawaii, Michigan, Montana, New Jersey, South Dakota, Utah, and Virgina have adopted statutes based upon the Harmless-Error Rule.

In 2008, the UPC added Notarized Wills so that a will that is in writing, signed by the testator, and notarized is valid. The rational behind this is that the notary provides the same protections and removes the danger of reliability that is present with wills that are not witnessed by two attesting witnesses and that a Notarized Will is a logical an extension of the harmless error rule.

The UPC and many Non-UPC states authorize holographic wills ( Florida does not recognize a holographic will unless it also complies with the Florida statute of wills)

The article goes on to state that often lawyers who prepare a package of estate planning documents often miss a signature on one or more documents and the ability to use a notary protects the clients and the attorney from the mistakes and consequences associated with the improper execution of the a will. In addition, the Notarized Will option would benefit individuals who attempt to execute wills on their own. Given the high likelihood of errors in these wills it is hard to determine if this is a benefit or not.

If you would like a will reviewed in Florida contact a Florida Estate Planning Lawyer.

Full post as published by Florida Estate Planning Lawyer Blog on December 17, 2008 (boomark / email).