Section 2-505
(a)
An individual generally competent to be a witness may act as a witness to a will.
(b)
The signing of a will by an interested witness shall not invalidate the will or any provision of it except that a devise to a witness or a spouse of such witness shall be void unless there are 2 other subscribing witnesses to the will who are not similarly benefited thereunder or the interested witness establishes that the bequest was not inserted, and the will was not signed, as a result of fraud or undue influence by the witness.
Comment
This Section simplifies the law relating to interested witnesses. Interest no longer disqualifies a person as a witness, nor does it invalidate or forfeit a gift under the will. Of course, the purpose of this change is not to foster use of interested witnesses, and attorneys will continue to use disinterested witnesses in execution of wills. But the rare and innocent use of a member of the testator's family on a home-drawn will is not penalized.
This approach does not increase appreciably the opportunity for fraud or undue influence. A substantial devise by will to a person who is one of the witnesses to the execution of the will is itself a suspicious circumstance, and the devise might be challenged on grounds of undue influence. The requirement of disinterested witnesses has not succeeded in preventing fraud and undue influence; and in most cases of undue influence, the influencer is careful not to sign as a witness, but to procure disinterested witnesses.
Under Section 3-406, an interested witness is competent to testify to prove execution of the will.
Massachusetts comment
Under Chapter 191, § 2 "a beneficial devise or legacy to a subscribing witness or to the husband or wife of such witness shall be void unless there are two other subscribing witnesses to the will who are not similarly benefited thereunder". Paragraph (b) of this Section would change the statutory rule, but the opportunity for fraud or undue influence is lessened considerably by addition of a clause at the end of that paragraph.
Incompetence of a witness subsequent to attestation should not prevent probate of the will under this section. Repeal of G.L. c. 191, §3 should not create any implication to the contrary.