Witnesses play an important societal role. In investigations, they provide valuable evidence to solve a case. In trials, their testimony is the difference between the prosecution getting a conviction or the defendant getting acquitted of the alleged charges.
Witnesses are also important when it comes to the validity of one’s Last Will and Testament (“LW&T”). At the time of execution, there must be two attesting witnesses who sign their names at the testator’s request1. But, there may be times where those two witnesses are not enough.
Consider the following hypothetical…an Oklahoma resident died with not only Oklahoma assets but also an out-of-state bank account with a sizeable balance. The decedent had no lineal descendants nor siblings. His LW&T left his estate equally to an aunt and a third-party. Unfortunately, the interested third-party was one of the subscribing witnesses. As a result, the will was not valid because it failed to have two competent subscribing witnesses and an interested witness is not a “competent” witness2 under the statute.
In the Matter of the Estate of Overt3, we see the above example in play. Decedent executed a will wherein said will was witnessed by (1) a devisee taking an interest under the LW&T and (2) decedent’s daughter-in-law. When the will was submitted for probate, the decedent’s son objected to the will’s validity because there were not two competent witnesses. Both the trial court and court of appeals ruled in favor of the son. The devisee unsuccessfully argued that the notary’s signature should count as the second competent witness.
The main takeaway of the Overt case was that, had there been a second competent subscribing witness, the will would have been valid. The above-noted hypothetical is a simplified version of a true story. As harsh as the result may be, the statutes clearly set out there must be two separate competent witnesses in order to have a valid will.
184 O.S. § 55
284 O.S. § 143
31989 OK Civ. App. 1
