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Codicil To Will Valid Despite Questions Raised By Witness

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Last week Elder Law Issues reported on the Tennessee case of Cleon Cooke, in which bank customer service representatives apparently did not know how to properly witness and notarize a will according to state law (“Bank Not Liable For Mistakes Made By Witnesses, Notary”). Sometimes the problem is the opposite—the witnessing may work too well when viewed after the fact.

Percy Lee Clark lived in Michigan, where he operated an auto salvage business. In 1985 he signed a new will, leaving $10,000 to a business associate, Kevin Watmuf. By a codicil signed a few years later, he also gave Mr. Watmuf a right of first refusal on the purchase of his business after he died.

In 1995, Mr. Clark had his lawyer prepare a new codicil. This time he decided he would not leave Mr. Watmuf any cash, but would give him the auto salvage business outright. Mr. Clark apparently signed the codicil, had it witnessed by his lawyer, and then took it to his brother William Clark to sign as a witness.

Mr. Clark’s brother signed the codicil as a witness, but without reading it or asking Mr. Clark what he was signing. As he said later, he “just figured he was my brother [and] I ought to be able to trust him.”

What Mr. Clark’s brother had signed was a statement that he had watched Mr. Clark sign the codicil, that he understood its contents, and that Mr. Clark knew it was a codicil to his will that he was signing. None of that was true, he said later from the witness stand. In fact, he said, when he signed the witness statement there were no other signatures on the document at all.

Two years later, Mr. Clark decided he no longer wanted to leave the auto salvage business to Mr. Watmuf, and so he visited a new lawyer to revoke his earlier will and leave everything instead to his family. Unfortunately, he died before the new will was executed.

Mr. Watmuf sought to admit the will and the codicil giving him the business. Family members objected, citing the irregularities in signing and witnessing of the 1995 codicil. The Michigan trial judge ruled that the codicil was a valid will in spite of the testimony of Mr. Clark’s brother, and the case was appealed to the Michigan Court of Appeals.

The appellate court upheld the lower court’s decision, and admitted the questioned codicil to probate. Michigan law (like Arizona law) sets up a presumption that a will which appears to have been properly signed and witnessed was in fact properly executed. Quoting another, similar Michigan case, the Court of Appeals ruled that “even where a subscribing witness denies the existence of certain facts necessary for the legal execution of the will, the presumption of regularity may prevail over such direct evidence.” In other words, Mr. Clark’s apparent compliance with the statutes governing will signing would overcome later challenges based on the testimony of a witness who denied that his own signature was valid. Estate of Percy Lee Clark, August 31, 1999.

Why would state law prevent a challenge where the signing requirements might not in fact have been properly met? Primarily because the possibility for fraud is so high. If a witness is permitted to recant his former declaration of the validity of the will, noted the judges, it would open even the most carefully-drawn wills to defeat by fraud after the death of the testator.

Despite public perception that will contests are commonplace, the reality is that wills are seldom challenged. Particularly when the will is drawn by a competent attorney, and includes appropriate recitations regarding intent and witnessing, it is extremely difficult to disprove the validity of the will. Centuries of legal history incorporated by the American adoption of the English Common Law have established the basic principles: it is important to comply with the requirements for execution of a will, but once those requirements have been met it is extremely difficult for disgruntled heirs or devisees to challenge the result.

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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.