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Bank Not Liable For Mistakes Made By Witnesses, Notary

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Witnesses are required for a number of legal documents, including wills (in most cases), powers of attorney and health care directives. Most lawyers recommend not having family members witness legal documents, since questions may later be raised about the signer’s competence, or the possibility of undue influence. It is often difficult, however, to find witnesses to even simple documents, particularly if the senior is ill, or in a hospital or nursing home.

Many facilities block employees from acting as witnesses. When a facility takes that position, it is usually because of concern about the possibility of employees being court witnesses, or becoming embroiled in bitter and protracted litigation. Friends may be reluctant to witness documents, and it is often difficult to ask for their assistance. When lawyers prepare the documents, they usually provide witnesses (often members of the lawyer’s staff). But when documents are prepared without a lawyer’s assistance, one of the most common places to look for a “professional” witness is at the senior’s bank.

It may seem like there is little risk involved in acting as a witness. It is easy, in fact, to be critical of those facilities that refuse to permit staff to witness documents. After all, how could acting as a witness cause any real problems?

The First Union National Bank of Hendersonville, Tennessee, knows what problems can arise from employees acting as witnesses. That’s where Cleon H. Cooke’s daughter took Mr. Cooke to sign a new will in 1995. Mr. Cooke waited in the car while his daughter went inside and talked to notary Beverly Pitt, a Customer Service Representative at the Bank. Ms. Pitt went out to the car with Mr. Cooke’s daughter, and watched him sign his will; she then took the document inside the bank and got two other bank employees to sign as witnesses, and then she notarized the document.

The problem with Ms. Pitt’s actions is that Tennessee, like Arizona, requires the witnesses to a will to sign in the presence of the testator (the person making the will). The First Union employees even signed a standard affidavit, claiming that they had done just that. But when Mr. Cooke died, his widow contested the will. She pointed out that it had not been signed properly, and that Mr. Cooke’s last valid will was a 20-year-old document that left his entire estate to her.

Mr. Cooke’s daughters, frustrated in their attempt to inherit Mr. Cooke’s dry cleaning business, sued the bank, the notary and the witnesses. The daughters alleged that the witnesses should pay them what they would have gotten from their father’s estate, because they had signed a false affidavit.

If the witnesses had read the document they signed, claim Mr. Cooke’s daughters, they would have seen that they were supposed to watch Mr. Cooke sign and themselves sign in his presence. Furthermore, the daughters argued, the notary should have known what was required to make a will valid, and the bank should have provided training to its employees in how to witness a will.

The Tennessee Court of Appeals disagreed. Although the witnesses owed a duty to Mr. Cooke, ruled the court, they owed no duty to his daughters, and the case against them could be dismissed. If the employees could not be sued, then the bank was not liable, either, and the lawsuit against the bank was also dismissed. Battles v. First Union Bank, September 1, 1999.

Even though the witnesses and the bank prevailed, both incurred legal costs, time in court and legal proceedings, and the anxiety of pending litigation. Those costs are the very reason so many facilities refuse to permit staff to act as witnesses.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.