Taylor was a musician. Her touring schedule kept her on the road for weeks at a time.  As her success grew, so did her earnings. Before embarking on the next leg of her tour, she decided to quickly draft a last will and testament in the event something happened to her during her travels. She found a sample form on the internet and tailored it for her use. She named her new boyfriend, Travis, as the sole beneficiary of her fortunes.  Her assistant tour manager was a notary public, so he notarized her signature on the document.  Did Taylor properly execute her will? The answer is no (bad news for Travis).

Ohio law provides that last wills and testaments must be signed at the end of the document by the testator (the person making the will) and must be attested and subscribed in the conscious presence of the testator by two or more competent witnesses. In other words, two or more people must watch the testator sign her will or hear the testator say that the signature on the will is actually hers. Then, the witnesses must sign the will under the observation of the testator. Contrary to popular belief, last wills and testaments do not need to be notarized. A notary public may serve as one of the two witnesses, however. 

The Ohio statute defines “conscious presence” as within the range of any of the testator's senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication. There are many cases in Ohio in which courts have thrown out wills because the witnesses never saw the testator sign. Likewise, courts have invalidated wills when the testator did not see or hear the witnesses sign the document. 

Interestingly, Ohio law states that all persons are competent witnesses for wills except those of unsound mind and children under ten years of age who appear incapable of understanding what they are signing. For obvious reasons, it is best not to use minor children to witness wills in the event the witnesses must testify in court. Also, individuals who are named as beneficiaries in the will should not sign as witnesses. While it does not invalidate a will, the bequest to the witness beneficiary will be deemed null and void.

While it may be tempting to create a last will and testament on your own, it may not end well.  It is important to seek the assistance of an experienced estate planning attorney to make sure that the contents of the will and its execution comply with applicable law.  Laribee Law, LLP is here to assist you.

Michael Laribee is a partner in the Medina law firm of Laribee Law, LLP. This article is intended to provide general information about the law. It is not intended to give legal advice. Readers are urged to seek advice from an attorney regarding their specific issues and rights.