Do we REALLY need two witnesses?

Going through the correct procedures of witnessing and notarizing estate planning documents can seem onerous, but skip it at your peril.  I recently read this in ElderLaw Answers…

 

 

Texas Attorney Disbarred for Attempted Theft Through Improper Will Filing

 

A Texas appeals court affirms an attorney’s disbarment for attempting to steal from an elderly woman’s estate by filing a will that had not been properly witnessed or notarized. Olsen v. Comm. for Lawyer Discipline (Tex. App., 5th Dist., No. 05-09-00945-CV, Aug. 9, 2011).

In 2002, Mary Ellen Logan Bendtsen executed a will that left her entire estate to her daughter and only child, Frances Ann Giron, and named Ms. Giron as executor of Ms. Bendtsen’s estate.  Following a fall in early 2005, Ms. Bendtsen, then 88 years old, was admitted to a hospital where a psychiatrist determined that she suffered from dementia.  While in the hospital, Ms. Bendtsen was visited by attorney Edwin C. Olsen IV and she executed a new two-page will that he had prepared which replaced Ms. Giron as executor and sole beneficiary of her mother’s estate and named a new executor and beneficiaries.

Ms. Bendtsen died on March 2, 2005, and within hours Mr. Olsen filed an application for probate of the new will on behalf of the new executor.  He attached to the application the two pages signed by Ms. Bendtsen and a one-page jurat signed and notarized by a notary.  Ms. Giron filed an application for probate of the 2002 will and a petition contesting the new will’s validity.  Subsequent evidence revealed that Ms. Bendtsen had not signed the will in the presence of both witnesses and that the notary, despite language in the jurat to the contrary, had not witnessed Ms. Bendtsen sign the will and had not signed and notarized the jurat in her presence.  The probate court set aside the 2005 will and admitted the 2002 will to probate.

Ms. Giron then filed a complaint against Mr. Olsen with the state bar.  A trial court granted the Commission for Lawyer Discipline’s motion that Mr. Olsen violated various rules of professional conduct and had committed the criminal offenses of attempted theft and securing execution of documents by deception.  The trial court later entered a final order permanently disbarring Mr. Olsen from practicing law in Texas and ordered him to pay the commission’s attorneys’ fees and costs.

On appeal, Mr. Olsen acknowledged that the jurat falsely stated that Ms. Bendtsen had signed the will in the presence of the notary.  However, he argued that the filing of the three-page will with the notary’s jurat instead of only the two-page will signed by Ms. Bendtsen was not done for dishonest reasons but rather to accommodate the notary, who had refused to go to the hospital to notarize the document.

The Court of Appeals of Texas, Fifth District, affirms Mr. Olsen’s disbarment.  The court concludes that he failed to raise a genuine issue of material fact that would preclude summary judgment on the commission’s claim that by filing the 2005 will and jurat, knowing them to include false information, he violated the rules of professional conduct relating to honesty, deceit and making false representations to the court.

For the full text of this decision, go to: http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?c05topin.ask+D+769150

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