Ensuring your will is signed and witnessed correctly is critical. Small mistakes at this stage can send a family to probate court, costing time and money.
At Casey Lundregan Burns, P.C., we have spent more than 90 years guiding Massachusetts families through estate planning, and we have seen how proper witnessing protects wishes and keeps peace in the family.
Overview of Witness Requirements in Massachusetts
Massachusetts law sets clear rules that every will must meet before the probate court will honor it. One key rule deals with witnesses to the signing of the will.
Following these requirements lowers the risk of a later challenge and keeps the probate process moving. The governing statute is Massachusetts General Laws c. 190B § 2-502, which lists the formalities a valid will must satisfy, including witness signatures.
Who Can Serve as a Witness?
Choosing the right witnesses is as important as writing your bequests. The Commonwealth places a few limits on who may fill this role, but you still have many options.
General Competency
Under Mass. General Laws c. 190B § 2-505(a), any person generally competent to testify in court may act as a witness to a will. In practice, this means someone who can observe, recall, and honestly report what happened.
Minimum Age
The witness must be at least 18 years old. This age limit helps make sure the witness is legally capable of giving testimony later if needed.
Mental Soundness
A witness must be able to understand the act they are observing. If a person cannot grasp that the document is a will or that the testator is signing it as their own, they cannot serve.
Disinterested Party
While the law does not forbid a beneficiary from witnessing, using a disinterested person, one who gains nothing from the will, is strongly advised. Doing so avoids claims of bias or pressure.
Who Cannot Serve as a Witness?
Certain people should be avoided because their involvement could raise red flags or even void gifts in the will.
Beneficiaries
A named beneficiary should not witness the will. If this happens, the will stays valid, but the gift to that witness may be voided unless an exception applies.
Spouses of Beneficiaries
The spouse of someone who will inherit also carries an indirect interest, making them a poor choice for the witnessing role.
Minors and Mentally Incompetent Individuals
Anyone under 18 or lacking mental capacity cannot legally act as a witness because they are unable to testify in court with full competence.
Individuals with Visual Impairments
If a person cannot see the testator signing or acknowledge the document, they cannot confirm what took place, and therefore, should not witness the will.
Interested Witnesses: Particular Rules
Massachusetts allows an “interested witness” in limited situations, but the rules are strict. Under Mass. General Laws c. 190B § 2-505(b), a will signed by a beneficiary witness remains valid, yet the gift to that witness is presumed void.
There are two ways to save that gift:
- Two other disinterested witnesses also signed the will
- The interested witness proves in court that the bequest and the signing were free of fraud or undue influence.
Because that proof can be costly and stressful, we usually recommend selecting two disinterested witnesses from the start.
Best Practices for Witnessing a Will
Following a few practical tips will make the will harder to contest and easier to probate.
- Gather all witnesses in the same room with the testator during the signing
- Have the testator state aloud that the document is their will
- Make sure each witness sees the testator sign or acknowledges the signature
- Each witness should sign right after, in front of the testator and the other witness
- Add a self-proving affidavit so the witnesses do not need to appear later
- Select witnesses younger than the testator and likely to remain available
- Pick reliable people who can recall events accurately if called upon
Potential Consequences of Improper Witnessing
If any part of the witnessing process is flawed, the will is open to attack during probate. An heir may claim the document is invalid, forcing the court to rely on an earlier will or the intestacy statute.
Even when the court upholds the will, a dispute can drain the estate and delay distribution. Families may face court hearings, legal fees, and strained relationships, all of which could have been avoided with correct witnessing.
Do You Need Assistance with Estate Planning?
Properly drafting and witnessing a will takes careful attention, and that is where Casey Lundregan Burns, P.C., can help. Our firm has protected Massachusetts families for three generations, using tested procedures that ensure wills pass securely through probate.
If you want your estate plan reviewed or need guidance for an upcoming signing, call us at 978-878-3519 or visit our Contact page. Our team is ready to work with you to put solid documents in place.
Life keeps moving, and so should your planning. A short phone call today can spare your loved ones the stress of a courtroom tomorrow. Reach out, get your questions answered, and move forward with confidence knowing your wishes will be honored.
The information in this post is not intended as legal advice or as a substitute for the particularized advice of counsel. For more information, please consult an attorney.