A Very Expensive Witness

Witnessing a will can sometimes be hazardous to your wallet. Read on:

Fact Situation One.

Larry, a widower, had four children: Alice (married to Fred), Barbara (now married to Gary), and Carol from his first marriage, and David from his third marriage. Shortly after his wife died, Larry made a will dividing his estate equally among all four children. David took his mother’s death very hard. Larry and David had a falling out, and they became more and more estranged. While Larry was in the hospital, Larry asked Fred, an attorney, to write out a codicil to his will. The major change was to give David only $20,000.00 and to divide what was left among Larry’s other three children. The codicil was handwritten exactly as Larry requested and was witnessed by Fred and by Gary, who was not married to Barbara at the time.

Fact Situation Two.

Robert never had or adopted any children. His wife, who died before him, had two children, Sandra and Tricia, Robert’s stepchildren. Tricia is married to William, and they had one child, Victor, who does not yet have any children of his own. William and Victor were the witnesses to Robert’s will.

Unexpected Results.

§4-6(a) of the Probate Act states in part as follows:

If any beneficial legacy or interest is given in a will to a person attesting its execution or to his spouse, the legacy or interest is void as to that beneficiary and all persons claiming under him, unless the will is otherwise duly attested by a sufficient number of witnesses as provided by this Article exclusive of that person, . . . but the beneficiary is entitled to receive so much of the legacy or interest given to him by the will as does not exceed the value of the share of the testator’s estate to which he would be entitled were the will not established.

Thus, no person can benefit from a will witnessed by that person or his or her spouse. This statute does not give a “choice.” It says that the will or codicil is valid and the share of the said individual is reduced or voided accordingly, no matter what the person wants and no mater how harsh the effect.

With that in mind, let’s look again at the two fact situations, both of which are based on actual cases.

In Fact Situation 1, the codicil is valid, and David will receive only $20,000.00. Alice will be limited to ¼ of the Estate, because her husband, Fred, witnessed the codicil, and because that is what she would have received under the earlier will. Barbara’s share will not be affected, since Gary was not her husband at the time the codicil was executed. Thus, Barbara and Carol will divide the remainder of the Estate equally (approximately 3/8 each instead of 1/3).

In Fact Situation 2, Tricia cannot take any share of the Estate, because her husband was a witness. Robert’s will did not specify that the gift to Tricia was per stirpes. Since Tricia was not Robert’s descendant, her share would not automatically descend to Victor. However, descendant or not, Victor’s share is also voided, since he witnessed the will. The entire estate, therefore, passes to Sandra. In the actual case from which these facts are taken, Tricia raised argument after argument to attack the severe effects of §4-6, but all of them were rejected by the Appellate Court.


The lesson to be learned from these examples is obvious. All witnesses should be disinterested under any reasonably foreseeable combination of facts. In Fact Situation 1 above, Fred had no one to blame but himself for the reduction in his wife’s inheritance. The attorney in Fact Situation 2 might well face a malpractice suit. None of us wants to wind up in any of these situations. Be careful who witnesses the wills and codicils you draw, and be especially careful what you yourself witness.

© 1999 by Cary A. Lind, all rights reserved