Interested Witnesses & No-Contest Provisions in Wills

Can an interested party act as a witness to a will in Utah? Section 75-2-505 of the Utah Uniform Probate Code provides that any person who is generally competent to act as a witness can serve as a witness to a will. This may seem like circular reasoning – someone…
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Can an interested party act as a witness to a will in Utah?

Section 75-2-505 of the Utah Uniform Probate Code provides that any person who is generally competent to act as a witness can serve as a witness to a will.

This may seem like circular reasoning – someone who can be a witness can be a witness. But subsection (2) gives insight as to why this is important. It reads, “The signing of a will by an interested witness does not invalidate the will or any provision of it.” Under common law, a person who had an interest in the will (someone who would inherit or receive benefit under the will) was not qualified to act as a witness to the signing of the will.

While section 505 reverses the old common law rule, it is still generally a good idea to have disinterested persons serve as witnesses to a will, to avoid any suggestion of improper influence.

Is a “no contest” provision in a last will and testament valid?

It is common to include “no contest” provisions in a last will and testament, typically providing that any person who would otherwise receive or inherit under the will is fully disinherited if such person contests the will or otherwise initiates legal proceedings relating to the estate or administration thereof. These provisions can be useful, but are not always 100% enforceable.

Utah Code section 75-2-515 provides that such provisions are not enforceable in relation to the estate if there is “probable cause” for instituting legal proceedings. In other words, if there is a legitimate issue that needs to be resolved by the courts, an interested person can initiate court action to resolve said issue.

These “no contest” provisions are generally intended to discourage fighting between heirs over trivial matters or non-issues. In this context, the intended purpose of the provision is to enforce the testator’s intent as set forth in the will. But an unscrupulous personal representative may be tempted to use the provision to intimidate others. Section 515 seems to strike a balance between the two possibilities by providing that the threatened disinheritance will not be effective if there is in fact probable cause to pursue court action.

Originally Published: November 18, 2024

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