Q: A man executes a will leaving his property to three people. Later, he executes a new will removing one of the heirs. Finally, he executes a third will leaving his property to the original three people but doesn't get the will witnessed. Which will controls? It seems like the first one should control because he made his intentions clear in the third will, even if he didn't do it correctly.
A: This sounds like a bar exam question. A lot of things can affect the outcome so I'm not sure there is a clear answer given the limited facts that you provided. However, I'll take a generic stab simply because this one is fun.
The first thing to determine is the validity of the last will. I think we would all agree that a will needs to be executed properly to be valid. Given that there were no attesting witnesses would seem to make it pretty clear that the third will is invalid.
I know it's fun to talk about intentions and all that, but the Indiana statute doesn't offer a lot of wiggle room. Except in really narrow circumstances, a valid will has to be in writing, signed by the creator and witnessed by two witnesses. That didn't happen here so I think it's out.
The next question is what happens with the second will? Was the second will revoked or is it valid and controlling?
There are two general ways to revoke a will: physical destruction or written instrument. You didn't say the will was destroyed so I'm guessing that if a revocation of the second will took place, it was via the third will. Wills generally contain a recital revoking all previous wills and codicils which serves as a written revocation.
The problem here is that the third will is most likely void and therefore could not have revoked the second will. Written revocations need to be witnessed also, and if the will wasn't witnessed, a recital contained in the will revoking prior wills is also void. I think that I'm going to say that, in all likelihood, the second will would be valid.
There are two things that you should take from this column. The first is that formalities matter. Although you mentioned the intent established in the third will, I'm not sure that it matters. Procedure and formalities usually trump intent.
Early in my career I spoke with an attorney that was involved in what he called the Swiss cheese will case. The exact facts escape me, but what I remember was that a maker of a will attempted to remove several beneficiaries by taking a razor blade and physically cutting their names out of the will.
After the maker's death, the fighting began. Ultimately, again if memory serves, the folks who were cut out of the will were ultimately included. The maker's intention was clear but he didn't do it the right way. Formality over intent.
The second thing I would like you to take from this column is that if these facts are accurate, and you are attempting to get a will admitted or excluded, see an attorney. Don't rely on the newspaper, sit down with an attorney and let him or her review all of the facts and do the research.
This was a fun academic exercise, but if this is real, don't walk to your attorney, run. What you've described is what my kids would call "messed up." Good luck.