Take-Away: In a recent case from Rhode Island, the notary to a Will’s execution by the testator was treated by its Supreme Court as a subscribing witness, thus satisfying that state’s requirement that a Will must be attested by two subscribing witnesses.

Background: Like most states that have adopted the Uniform Probate Code, Michigan requires that two witnesses subscribe to the testator’s execution of a Will for the Will to be admitted to probate. [MCL 700.2502(1)(c).] In the absence of two subscribing witnesses, the Will is invalid and the decedent’s estate passes pursuant to Michigan’s intestacy rules. What happens when one individual signs as a ‘witness’ while the other individual signs in the capacity as ‘notary?’ That was the question before the Rhode Island Supreme Court.

In re Estate of Barbara Cardiff, Rhode Island Supreme Court (February 7, 2022)

Facts: Barbara signed her Will in February, 2016. The Will included Barbara’s signature and the signatures of Christopher Fusaro and Linda La Parle, a Rhode Island notary. Barbara’s attestation at the end of the Will where she signed the Will included the language “….declaring and publishing this instrument as my Last Will, in the presence of the undersigned witnesses, who witnessed and subscribed this Last Will at my request and in my presence.”

After Barbara’s execution clause in the Will was the normal witness attestation clause which recited in part: “ …to be their Last Will, in our presence, who at their request and in their presence and in the presence of each other, all being present at the same time, have signed our names as witnesses.”  This provision was followed by Christopher’s signature and his printed name and address, which identified him as Witness #1.  The line for Witness #2 and the accompanying information were left blank.

However, the next clause in the Will was entitled ‘affidavit’ which contained Linda’s long-form notarization of Barbara and the ‘the witnesses’ signatures to the Will. Linda’s notary stamp was affixed to the Will.

In short, there was one Witness signature, and one Notary signature to Barbara’s Will.

Barbara died in 2018. Her niece filed the Will with the probate court and sought its admission as Barbara’s Last Will. Christopher and Linda each signed an Affidavit for Proof of Will which were filed with the probate court. Another individual, Michael, filed an objection to the Will

Dispute: Michael claimed that the instrument did not meet the statutory requirements for a valid Will under Rhode Island law, as it did not contain the signatures of two witnesses, and thus Barbara died intestate.

Probate and Superior Courts: The probate court admitted Barbara’s Will to probate. The Superior Court found that Linda “was in fact a witness” and it affirmed the order of the probate court admitting Barbara’s Will to probate.

Rhode Island Supreme Court: The Supreme Court held that a notary signature can also ‘count’ as a required witness signature to make a valid Will under Rhode Island law.

“Signing the will in her capacity as a notary does not mean that La Parle was not a witness; she simply went beyond what was required under [the Rhode Island statute, citation omitted.] It cannot be that doing more than the statute requires, and including all the essentials of what it does require, fails for not obeying the statute. The greater must include the less. In reviewing the language of the will, we note that the testator’s signature followed: ‘I have signed my name in the presence of the undersigned witnesses, who witnessed and subscribed this Last Will at my request and in my presence.’”

It was clear that Christopher and Linda each signed Barbara’s Will in the presence of one another, thus satisfying the ‘subscribe and attest’ requirement of the Rhode Island statute.

Observation: Barbara’s estate could have saved a lot of time and legal expense had her Will had two subscribing witnesses. Leaving Witness #2 blank was an invitation to disgruntled heir or remote descendant to challenge its validity.

Conclusion: This is a simple decision that reflects the evolution in law over time since the adopted of the Uniform Probate Code that strict adherence to Will execution formalies can be tempered by the doctrine of ‘substantial compliance’ with those rules.