Family Member as Witness to a Will

Stephen Howard — Stone River Law

Real People. Real Solutions.

Family Member as Witness to a Will

Can a family member act as a witness to a last will and testament in Utah?

The short answer is yes, but think twice (or three times, or four) before doing it.

This page provides general information on eligible witnesses to a will in Utah. If you are considering executing a will or creating other estate planning tools or documents, the assistance and advice of an estate planning attorney is strongly recommended. Contact us directly to see how we can help you.

Who can act as a witness to a will in Utah?

Utah Code 75-2-505 provides generally that any person who would otherwise be competent to act as a witness may also act as a witness to a will. A person who is generally able to understand the proceedings, assess whether the testator appears to be acting voluntarily, and recall communicate those understandings would normally be considered competent as a witness.

Under English Common Law, a witness to a will was required to be a disinterested individual. This meant that family members or other beneficiaries under the will could not serve as witnesses to the will. Having such a person act as a witness could result in the will being declared invalid.

Utah law has departed from the earlier English Common Law rules, with -section 75-2-505 providing specifically that the status of a witness -as an “interested party” (a term referring generally to a family member or other person who may be named as a beneficiary in the will) does not invalidate the will, nor does the status as beneficiary invalidate any of the provisions of the will that might deal directly with that beneficiary.

Assuming that the proposed family member witness is otherwise competent to act, then a family member is legally able to sere as a witness to a will. Although a family member is legally eligible to serve as a witness to a will, there are other factors to consider that weigh in favor of choosing witnesses who are not beneficiaries under the will.

Why not use a family member witness?

When a family member acts as a witness to a will, it increases the risk of significant problems that can arise if the will is contested. This can happen either in the formal court probate process or through arguments and disagreements between family members.

Claims of improper influence may be made against the interested witness or family member. Especially in circumstances where the witness receives a larger share of the estate than other beneficiaries or if other expected beneficiaries are disinherited in the will, it may appear that the interested witness to the will inappropriately pressured the testator to make those changes in the will.

Litigation over contested provisions in a will or over the validity of the will in its entirety can be complex, costly, time-consuming, and emotionally draining for family members. The risks of having such disputes arise is significantly reduced if no family members or other interested beneficiaries act as a witness to the will.

Only if no other choices are available should serious consideration ever be given to using a family member as a witness to a will. Circumstances where no other potential witnesses are available should normally be exceedingly rare.

In other words, as a general rule, don’t use a family member to witness a will unless absolutely necessary.

Help Creating a Personal and Family Estate Plan

A good attorney can help make the estate planning process easier, faster, more effective, and may even save you money in the long run. Contact us today to see how the our estate planning team can help you.