Legal Considerations in Missouri Will Signings: Ensuring Validity and Mitigating Disputes

In Missouri, if you die without a Last Will & Testament (will), your assets will be distributed according to state “intestacy” laws. In summary, those laws give your property to your closest relatives, beginning with your spouse and children. If you lack a spouse and children, your grandchildren or your parents will be next in line. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, and cousins of any degree. If the court exhausts this list to find that you have no living relatives by blood or marriage, your property will “escheat” into the state’s coffers. However, this very rarely happens because the laws are designed to distribute your property to anyone who was even remotely related to you.

The process of signing a Last Will & Testament (will) in Missouri is a critical step in estate planning, ensuring that the testator’s intentions are legally recognized and enforceable by Missouri courts. This article explores the legal requirements for will signings, the role of witnesses, common challenges encountered during the process, and best practices to mitigate potential disputes.

A will, or testament, is a legal document that expresses an individual’s wishes regarding the distribution of their assets upon death. The signing of a will is a formal procedure governed by state laws, designed to authenticate the document and protect against fraud and undue influence. This article provides an in-depth analysis of the legal framework governing will signings, examines potential pitfalls, and offers practical guidance for legal practitioners and individuals involved in the process.

A will must meet the legal requirements set forth by Missouri law in order for it to be valid. Missouri will also accept a Will that was executed in another state if the document is a valid will under Missouri law. The general requirements for a valid will are as follows: (a) the document must be written (meaning handwritten, typed, or printed), and (b) signed by the person making the will (“testator” or “testatrix”), and (c) signed by two or more witnesses. In Missouri, the laws regarding the valid execution and witnessing of a will are set forth in Sections 474.310 through 474.337 of the Missouri Revised Statutes.

In Missouri, any person eighteen (18) years of age or older, or any emancipated minor, or minor in a marriage or on active military duty, and of sound mind may execute a will. “Sound mind” generally means someone who has not been adjudicated or determined to be incapacitated or incompetent in a prior legal proceeding. The testator must possess testamentary capacity, meaning they understand the nature and extent of their estate and the implications of their actions. The testator must intend for the document to serve as their will, free from duress, fraud, or undue influence by others. The testator must sign the will, typically at the end of the document, but if the testator is unable to sign, another individual may sign on their behalf in their presence and at their direction pursuant to an appointment of authority.

Missouri law at Section 474.320 RSMo., requires every will to be signed by the testator, or by some person, by his direction, in his presence; and shall be attested by two or more competent witnesses who are not beneficiaries under the will and who subscribe their names to the will in the presence of the testator. These witnesses ultimately sign the document, attesting to the testator’s capacity and voluntariness.

While not universally required, Missouri law allows wills to be notarized or include a self-proving affidavit. This affidavit, signed by the testator and witnesses in the presence of a Notary Public, can streamline the probate process by reducing the need for witness testimony to authenticate the will.

Challenging a will based on the testator’s lack of capacity is common. To mitigate this risk, seasoned attorneys ensure that the testator is lucid and comprehends the implications of their actions. Documentation, such as a medical evaluation, can provide additional evidence of capacity should the need arise such as when a testator appears unstable or unable to recall recent events. Claims of undue influence often arise in will contests when a will disproportionately favors one beneficiary. Attorneys should be vigilant for signs of coercion, especially in cases involving vulnerable testators or disproportionate distributions. Independent legal advice and clear documentation of the testator’s intentions can help counteract such claims.

Errors in the will signing process, such as missing witness signatures or improper witness qualifications, can invalidate a will. Attorneys well versed in the practice of creating wills meticulously follow statutory requirements and ensure that all formalities are observed. A will can be revoked or amended by a subsequent will or codicil. Ensuring that such documents are properly executed and clearly express the testator’s intent is crucial to avoid conflicting interpretations.

Some best practices for will signings include preparation.Before the signing, review the will with the testator to confirm their wishes and ensure that they understand the document’s contents. Address any questions or concerns they may have. Select witnesses who meet statutory requirements and are unlikely to contest the will. Ideally, witnesses should be disinterested parties with no stake in the testator’s estate.

Conduct a formal execution ceremony where the testator and witnesses sign the will in each other’s presence. Ensure that the process is methodically documented, including the date, location, and names of all parties involved. Maintain detailed records of the will signing, including notes on the testator’s capacity and the presence of witnesses. A video recording of the execution ceremony, while not legally required, can provide additional evidence of the testator’s intent and capacity. Regularly review and update the will to reflect any changes in the testator’s circumstances or wishes. Ensure that any amendments are properly executed as per statutory requirements.

The signing of a will is a critical step in ensuring that an individual’s testamentary intentions are honored. Adhering to legal formalities and best practices can help mitigate the risk of disputes and challenges, providing peace of mind for the testator and clarity for beneficiaries. Legal professionals play a vital role in guiding clients through this process, ensuring that all legal requirements are met and that the will reflects the testator’s true intentions.

Todd Miller is a monthly contributor and regularly writes and speaks on various legal topics including bankruptcy, estate planning, probate, and elder law. He formed the Law Office of Todd Miller, LLC, 1305 Southwest Blvd., Ste. A, Jefferson City, Missouri in 2006. He has been awarded the Substantial Contributor Attorney Award by the Missouri Bar and ranked as one of the “Top Attorneys in Missouri” by The Legal Network. Mr. Miller earned his juris doctorate degree from the University of Missouri School of Law and graduated with honors from Lincoln University. You may find him at www.toddmillerlaw.com (573) 634-2838 or on Facebook, Instagram, and Twitter.