In order to be valid, a will in Montana (other than a holographic will) must be:
- In writing;
- Signed by the testator;
- Signed and witnessed by two witnesses.
The requirements to make a valid will under Montana law are found in Mont. Code § 72-2-522.
Who Can Make a Valid Will Under Montana Law?
In Montana, an individual 18 or more years of age who is of sound mind may make a will. Mont. Code § 72-2-521. To be of sound mind to make a will in Montana (to have testamentary capacity), the testator must be aware of three elements:
- The nature of the act to be performed,
- The nature and the extent of the property to be disposed of, and
- The objects of his or her bounty.
See In the Matter of the Estate of Violet H. Quirin for a discussion by the Montana Supreme Court of testamentary capacity to make a valid will.
A Montana Will Must Be Signed
In addition to being in writing, a Montana will must be “signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction.” . Mont. Code § 72-2-521.
Therefore, if a testator is unable because of a physical reason to sign his or will, the testator can direct another person to sign the testator’s name to the will. The testator must direct the other person to sign, and the signing must be done in the testator’s conscious presence. This means that the testator must know that the other person is signing the will when the person is signing it. If the testator is asleep or unconscious, the presence requirement will not be met.
A Montana Will Must Be Properly Witnessed
In order to be considered valid, a Montana will must be signed by at least two individuals, each of whom signed within a reasonable time after having witnessed either the signing of the will as described in subsection (1)(b) or the testator’s acknowledgment of that signature or acknowledgement of the will. Mont. Code § 72-2-522.
An individual who is generally competent to be a witness may act as a witness to the will. Mont. Code § 72-2-525.
Can a Beneficiary Witness a Will In Montana?
Yes. An interested witness (generally a beneficiary under the will) can sign the will and the will, and all provisions of the will, is not invalidated by reason thereof. Mont. Code § 72-2-525(2).
Does a Will Have To Be Notarized To Be Valid In Montana?
No, there is no requirement that a will must be notarized to be considered valid under Montana law. However, Montana, like many states, allows a testator to make a will self-proving. To make a will self-proving, a notary must witness the signatures of the testator and witnesses on an affidavit attesting to the execution and witnessing of the will. Making a will self-proving speeds up the probate process because the witnesses will not have to attest to the validity of the will after the testator’s death to have the will admitted to probate.
Montana law provides form language to make a will self-proving, which is found in Mont. Code § 72-2-524 and should be substantially followed.
Working with a Montana probate lawyer is the best way to make sure that you have created a valid will that carries out your testamentary wishes.
