Massachusetts law provides that there must be two witnesses to a will. If a witness is a beneficiary under the will they are still able to serve as a witness, but any gift under the will to them or their husband or wife will be void unless there are two other witnesses who are not benefited under the will and whose spouses are not benefited under the will. The purpose of this law (adopted in most states) is to prevent fraud or undue influence.
I had a very rich client who paid a pitifully paltry pittance to two household employees. She assured them that she would provide liberally for them in her will, and, to show her good faith, they could be the witnesses to her will (the only witnesses.) Under Massachusetts law those bequests would be void, and I concluded that the client knew this.
She asked me to prepare a new will with her employees as beneficiaries and witnesses. I refused to prepare the new will for her, and instead resigned as her attorney.
In a recent New York case, Cynthia Wu's will provided that estate taxes on assets passing outside of her probate estate would be paid out of residue, and not apportioned to the recipient of the assets. Harry Wu, Cynthia's brother, was the beneficiary of $3,314, 215 in life insurance which passed outside of the probate estate and he was one of the two witnesses under Cynthia's will.
The Surrogate's Court in New York (the equivalent of our probate court) held that the provision paying taxes out of residue was a benefit to Harry under the will, and therefore was void, since Harry was a witness. Harry had to pay more than $1,000,000 of estate taxes (which would otherwise come out of the probate estate), which made woeful Wu rue the day of Cynthia Wu's will witnessing.
Don't be a witness to a will if you or your spouse are a beneficiary under the will, unless there are at least two other witnesses who are not beneficiaries and whose spouses are not beneficiaries. Better yet, have two totally independent people witness the will.
