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Posted by ABC Legal Docs, LLC - Jerry Lucas on 2/3/19 2:45pm
It appears that the customer is blaming the notary for not providing legal advice on the proper parties to use to witness her husband's will. The notary did not choose the witnesses. The testator brought the witnesses to the notary. There is no mention of any problem with the notarization of the document.
The customer chose to use an online will form rather than pay for an attorney to prepare the will and give legal advice. The online will probably had accompanying instructions. If not, the customer could have contacted the legal form publisher for instructions. It is not the notary's duty or authority to provide instructions or legal advice. (I noticed that LegalZoom provides correct instructions for SC witnesses on their website.)
The "news" story is poorly written, with missing information. The wife refers to the will as her will, but it is his will. It does not state that the husband (testator) and two witnesses went to the notary. It appears to be a newsvertising article to direct readers to a linked local estate planning firm rather than use do-it-yourself legal forms. Many people choose to use DIY legal forms.
According to South Carolina probate code 62-2-504, the signing of a will by an interested witness does not invalidate the will, but a gift to the interested witness, above the intestate gift value, is void, unless there are at least two disinterested witnesses to the will. Otherwise, the voided gift may still be passed to the interested witness according to state intestacy laws. There may be cases where the interested witness does not need or want to receive an inheritance from the will.
The customer and the notary could have avoided problems by reading one probate law regarding choosing suitable witnesses for a will.
The SC Notary law and manual prohibit Unauthorized Practice of Law (UPL), including choosing, preparing or helping a person understand a legal document, giving legal advice or answering legal questions.
I would require employee notary training and testing, and display a conspicuous notice on my website and at my notary location: "I AM NOT AN ATTORNEY LICENSED TO PRACTICE LAW IN THE STATE OF SOUTH CAROLINA, AND I MAY NOT GIVE LEGAL ADVICE OR ACCEPT FEES FOR LEGAL ADVICE." |
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