Witnessing a Will: Can a Lawyer Be a Witness?

Writing a will is one of the most important steps in protecting your family’s future. But ensuring that it holds up in court requires more than just your signature. Witnesses play a crucial role in making your will legally acceptable. This requirement raises a common question: Can a lawyer be a witness to your will?

At Foust & Foust, PLLC, we understand how important it is to get your estate plan right. Our firm provides estate planning, probate, and trust administration services throughout Tennessee. Today, we’re breaking down what you need to know about will witnesses and whether a lawyer can fill that role.

The Importance of Proper Will Execution

A will is only valid if it meets Tennessee’s legal requirements. Even small mistakes in execution can lead to costly disputes, delays, and unintended asset distribution.

Legal Requirements

In Tennessee, a will must be written and signed by the person making it (the testator). Additionally, at least two witnesses must watch the testator sign the will and then sign it themselves. These witnesses confirm that the testator is of sound mind and acting of their own free will.

If a will does not meet these basic requirements, it may be declared invalid, forcing the court to distribute the estate according to Tennessee’s intestacy laws—potentially in ways the testator never intended.

Role of Witnesses

Witnesses serve as neutral third parties who confirm that the will was executed correctly. Their primary responsibilities include:

• Watching the testator sign the will.
• Confirming that the testator understands what they are signing.
• Attesting that the testator is acting voluntarily and without undue pressure.
• Signing the will in the testator’s presence.

By fulfilling these duties, witnesses help prevent future claims of fraud, forgery, or undue influence, ensuring that the testator’s wishes are honored.

Consequences of Improper Execution

If a will is not properly witnessed, it could lead to serious complications, such as:

• Probate disputes – Family members may challenge the will, leading to lengthy and expensive court proceedings.
• Invalidation of the will – A judge may rule the will unenforceable, leaving the estate to be distributed according to state intestacy laws.
• Delays in estate settlement – Without a valid will, the probate process can take much longer, leaving heirs in limbo.

To avoid these pitfalls, it’s essential to follow Tennessee’s requirements closely and ensure that proper witnesses are present.

Can a Lawyer Be a Witness?

Many people assume that any adult can witness a will, but not all witnesses are ideal choices. Lawyers are often present when wills are created, but should they also be witnesses? Let’s take a closer look at the legal and practical considerations.?

Competency and Eligibility in Tennessee

Tennessee law allows any competent adult to serve as a witness to a will. This includes lawyers, as long as they are at least 18 years old and of sound mind.

But what does “sound mind” mean in this context? Your witness must be able to understand the nature of what they are witnessing and be capable of recalling the event later if needed. They should have no cognitive impairments (problems that affect a person’s thinking, judgment, memory, and decision-making) that would call their credibility into question.

Interested Witnesses and Potential Conflicts

A witness who stands to benefit from a will is known as an interested witness. Tennessee law does not prohibit interested witnesses, but it does impose certain restrictions. If a witness stands to inherit under the will, their gift may be reduced or even invalidated unless there are two additional disinterested witnesses present.

For example, if a lawyer is named as a beneficiary in the will they are witnessing, the court may scrutinize the situation closely to ensure there was no undue influence. In such cases, having a disinterested witness can help preserve the will’s integrity.

Practical Considerations and Potential Complications

Even though a lawyer can legally act as a witness, it’s not always the best idea. Here’s why:

• Conflicts of interest – If the lawyer is also the drafter of the will, acting as a witness could create ethical concerns.
• Testimony in court – If the will is contested, witnesses may be called to testify. A lawyer acting as a witness could end up in an awkward position, potentially compromising attorney-client privilege.
• Perceived influence – Having a lawyer serve as a witness might give the impression that they had undue influence over the testator’s decisions.

Tennessee Specifics

Under Tennessee Code § 32-1-104, wills must be signed by at least two competent witnesses. While lawyers are not excluded from serving as witnesses, best practices suggest avoiding any situation where their impartiality might be questioned.

Best Practices

To avoid unnecessary complications, it’s generally best to use disinterested witnesses. This ensures that the will is less likely to be challenged and removes any doubts about fairness in execution.

If a lawyer must act as a witness, it should only be in situations where no conflicts exist, and additional precautions—such as using a self-proving affidavit—are taken.

Alternatives and Recommendations

If you’re unsure about who should witness your will, there are safer alternatives that can help you avoid complications. Here are some of the best options to ensure your will is legally sound and less likely to be challenged.

Disinterested Witnesses

The safest approach is to use two individuals who have no stake in the will. Good candidates include:

• Friends or colleagues with no interest in the estate
• Office staff (if unrelated to the testator)
• Neighbors

Notary Public

While a notary public cannot replace the need for two witnesses in Tennessee, they can help verify signatures.

A self-proving affidavit is a document signed by the witnesses and notarized, which confirms that the will was properly executed. This affidavit can prevent the need for witnesses to testify in probate court later.

Professional Guidance

Every will should be thoroughly reviewed by an attorney, even if they are not serving as a witness. An estate planning lawyer can:

• Ensure compliance with Tennessee’s laws
• Help avoid unnecessary conflicts
• Provide recommendations for best practices in will execution

By working with an attorney, you can have confidence that your will is legally sound and less likely to face challenges.

Securing Your Legacy with Foust & Foust, PLLC

At Foust & Foust, PLLC, we are committed to making estate planning simple and effective. As a boutique law firm in Tennessee, we provide the personal attention your estate plan deserves. Whether you need assistance drafting a will, selecting the right witnesses, or reviewing an existing document, we are here to help.

Don’t leave your legacy to chance. Contact us today at 865-203 4041 or visit our Contact Us page to schedule a consultation. Let’s work together to secure your family’s future.