A True Story
Credit Where Credit Due
There is always an easy solution to every human problem – neat, plausible, and wrong. -H.L. Mencken
While waiting for my case to be called in court, the judge called the next case. An attorney with his client at counsel table informed the judge that they were seeking formal admission of a decedent’s Will, but there was a problem.
“What problem”, the judge asked?
“Words were crossed out in the Will”. “What words”, the judge inquired?
“Of sound mind” and with that, there was an audible groan throughout the courtroom. “But, I can explain,” said the attorney. “Please do,” said the judge looking flummoxed. “My client, who is seated next to me, was present when his father went to a Credit Union to have his Will notarized. The teller said that since the witnesses signed below a statement that the testator was an ‘adult, and of sound mind’, that she couldn’t authenticate that document. She was not able to determine if the testator was of ‘sound mind’ or not since she wasn’t a psychologist. She would only agree to notarize the document if she could cross out the words, ‘of sound mind’ and that is why those words are struck out, your honor.”
The judge could see that this was a case of a lay person trying to give legal advice. The judge understood that the oath taken by the notary was acknowledgement by the witnesses as to what “they believed” and the veracity of their statements had no bearing on what the notary believed. She was only authenticating that the person signing was who they said they were and that they were swearing to certain facts in her presence. When someone takes an oath in court to tell the truth, the person may or may not tell the truth. But the function of the bailiff is essentially the same as the notary. He documents the fact, in open court, that they swear to tell the truth under penalty of perjury.
So, on this occasion the judge looked about the courtroom and said, “Anyone here appearing to object to a motion for the admission of this Will?” Then, he went on to say,”Hearing no objection, so ordered.” So that Will is on record which purports to deny that the testator is competent. That may not be the law, but unless you appeal the order of a judge, it is the law to you.
Why do lawyers exist? To help clients understand that the law is not intuitive and not for the faint of heart. Often when we see examples of non-lawyers explaining the law to others, we just shake our heads. The teller who notarized that Will was probably never made aware of the problems she caused, and it took an attorney to unravel the mess.