Grounds for Will Invalidation Witness Attestation To be valid, a will must be by 2 or more witnesses, who credible “signed shall at the request of the testator and in the presence, attest to the testator’s testator’s signature.” RSA 551:2, IV. means, simply, that the witness must be competent, or “The term ‘credible’ … not disqualified at the time of the attestation to be sworn and to testify in a court of justice.” 58 N.H. 7 (1876). Testimonial capacity requires an Lord v. Lord, ability “to observe, remember and narrate as well as understand the duty to tell the N.H. Rules of Evid., Rule 601(b). In truth.” 120 N.H. 489, 490 (1980), the court affirmed disallowance of the will on Ross v. Carlino, grounds that one of the witnesses the requisite mental capacity to (a hospital patient) “lacked attest that the deceased executed the will [and] that she neither had knowledge of its contents nor possessed the mental capacity to sign.” If one of the witnesses (or his or her spouse) is a legatee or recipient of a such as a trust, under a will, the testamentary provision be void unless “beneficial device,” “shall there be 2 other subscribing witnesses, and such subscribing witnesses shall be competent witness RSA to be disqualifying, must be a present, certain, and thereto.” 551:3. “[T]he interest, 58 N.H. 7, 9 (1876) (brother and heir-at-law of executor was a Lord v. Lord, vested interest.” competent witness); 99 N.H. witnesses are see In re Amore Estate, 417, 420 (1955) (“attesting considered competent even though they may receive some indirect benefit under the will”); 56 N.H. 25 (1875) (nominated executor and his wife held competent Stewart v. Harriman, witnesses). 152 N.H. 669, 671 (2005), described the In re Estate of Fischer, requirement that the witnesses sign in the presence of the testator as follows:
Grounds for Will Invalidation Witness Attestation To be valid, a will must be “signed by 2 or more credible witnesses, who shall at the request of the testator and in the testator’s presence, attest to the testator’s signature.” RSA 551:2, IV. “The term ‘credible’ … means, simply, that the witness must be competent, or not disqualified at the time of the attestation to be sworn and to testify in a court of justice.” Lord v. Lord, 58 N.H. 7 (1876). Testimonial capacity requires an ability “to observe, remember and narrate as well as understand the duty to tell the truth.” N.H. Rules of Evid., Rule 601(b). In Ross v. Carlino, 120 N.H. 489, 490 (1980), the court affirmed disallowance of the will on grounds that one of the witnesses (a hospital patient) “lacked the requisite mental capacity to attest that the deceased executed the will [and] that she neither had knowledge of its contents nor possessed the mental capacity to sign.” If one of the witnesses (or his or her spouse) is a legatee or recipient of a “beneficial device,” such as a trust, under a will, the testamentary provision “shall be void unless there be 2 other subscribing witnesses, and such subscribing witnesses shall be competent witness thereto.” RSA 551:3. “[T]he interest, to be disqualifying, must be a present, certain, and vested interest.” Lord v. Lord, 58 N.H. 7, 9 (1876) (brother and heir-at-law of executor was a competent witness); see In re Amore Estate, 99 N.H. 417, 420 (1955) (“attesting witnesses are considered competent even though they may receive some indirect benefit under the will”); Stewart v. Harriman, 56 N.H. 25 (1875) (nominated executor and his wife held competent witnesses). In re Estate of Fischer, 152 N.H. 669, 671 (2005), described the requirement that the witnesses sign in the presence of the testator as follows: