My grandmother died with a will and a codicil. The will is signed, witnessed, notarized and has something called an Attestation Clause in it. But the codicil is signed, witnessed and notarized, but no Attestation Clause. Is the codicil enforceable? Can anyone tell me? Can you point me to a rule/statute/code??? Thank you.
The Attestation Clause turns the will into a "self-proved" will (MGL c. 190B s. 2-504). This means that the witnesses will not have to write affidavits in order for the will to be admitted to probate. They are swearing as to what they saw at the time that they saw it, instead of swearing to what they saw at a later date.
Since the Codicil does not have one, it is still valid - but if challenged, it may require the witnesses to write affidavits. This could present a problem if the witnesses cannot be found or are deceased.
If you are thinking of challenging the will on these grounds, hire a qualified probate attorney. Challenging wills and codicils can inadvertently result in disinheriting yourself. Tread carefully. My firm handles these matters, as do many firms you can find using the "Find a Lawyer" link above. Most, including us, offer free consultations.
First, I am sorry for your loss. The MA Uniform Probate Code outlines the requirements for a valid will in MA:
M.G.L. §2--501: An individual 18 or more years of age who is of sound mind may make a will.
M.G.L. §2--502: (a) Except as provided in subsection (b) and in sections 2-506 and 2-513, a will shall be:
(1) in writing;
(2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction; and
(3) signed by at least 2 individuals, each of whom witnessed either the signing of the will as described in paragraph (2) or the testator’s acknowledgment of that signature or acknowledgment of the will.
(b) Intent that the document constitute the testator’s will can be established by extrinsic evidence.
M.G.L. §2--503 outlines the specifics of "attestation" required.
My guess is that if the codicil was drafted and executed with the help of an attorney, and it was witnessed and notarized, it will meet the requirements of the statute. Let me know if you have any other questions -
Please note: The above is for general information purposes only. It is not intended to establish and does not establish any attorney-client relationship.
Estate Planning Attorney
If your grandmother's will had an attestation clause, then odds are that she signed her will before the Massachusetts Probate Code was enacted. The attestation clause is also called a Self-proving Affidavit. It is a attached at the end of the will so that the will may be proved to the court without having to track down the witnesses and making them appear in court after the testator's death. An effective codicil does not need an attestation clause.
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