Law of Wills, 2016A

Viewing this evidence in a light most favorable to Victoria, it could be said that the witnesses
attested and subscribed to the will in the conscious presence of Kay, as the witnesses were within
range of her hearing. See R.C. 2107.03. Accordingly, I would conclude that the movant was not
entitled to summary judgment.
12.5 Witnesses
The testator must sign the will before the number of competent witness specified in the
statute. A witness is competent if he or she is over the age of majority and of sound mind. The
witnesses must be disinterested. A disinterested witness is one who does not benefit directly or
indirectly from the will. A will signed by an interested witness is not invalid as long as there are
enough disinterested witnesses who sign the will. Consequently, lawyers should always have more
than the required number of witnesses sign the will. Consider the following example.
Example:
Kate lives in a jurisdiction that requires a will to be witnessed by two disinterested witnesses. Kate
executed a will leaving half of her estate to Della and half to Betsy. The will was signed and
witnessed by Della, Tony and Wayne.
Explanation:
The will was validly executed because it was signed in the presence of Tony and Wayne who are
both disinterested witnesses. Thus, Della gets to take half of the estate even though she witnessed
the will. The outcome would have been different if the will had only been signed by Della and
Tony.
A.C.A. § 28-25-102. Competency, etc., of witnesses
(a) Any person, eighteen (18) years of age or older, competent to be witness generally in this state
may act as attesting witness to a will.
(b) No will is invalidated because attested by an interested witness, but an interested witness, unless
the will is also attested by two (2) qualified disinterested witnesses, shall forfeit so much of the
provision therein made for him or her as in the aggregate exceeds in value, as of the date of the
testator's death, what he or she would have received had the testator died intestate.
(c) No attesting witness is interested unless the will gives to him or her some beneficial interest by
way of devise.
(d) An attesting witness, even though interested, may be compelled to testify with respect to the will.
When evaluating the validity of a will, courts make a two-fold inquiry. They must first
determine whether or not the testator’s will was witnessed by the mandated number of witnesses. In
order for the witnesses to count, they must be competent. Thus, the second thing the court must
decide is whether or not the witnesses were competent to witness and sign the will. In addition to
evaluating the witnesses’ age and mental competency, the court must decide if the witnesses were
489