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By Lane V. Erickson, Idaho Estate Planning Attorney

Many times in my nearly 20-year career as a Idaho estate planning attorney I’ve had clients come to me and talk with me about how they can create a valid last will and testament in Idaho. During many of these meetings clients often bring to me the documents that they created from online services or from software kits that they purchased from an office supply store. Sometimes these documents are signed and sometimes they are not. Most regularly, these documents are not properly witnessed or notarized. When this happens, I have to tell my clients that the document they presented to me is not a valid last will and testament in Idaho.

To help you understand what creates a valid will in Idaho this blog will review the Toms v. Davies case which was decided by the Idaho Court of Appeals in 1995. Even though this case is over 20 years old it still provides a good deal of insight as to what creates a valid written last will and testament in Idaho, and how witnesses are important.

The basic facts of this case are that an individual had a last will and testament prepared and signed it. However, they did so outside of the presence of any witnesses. Later witnesses were asked to sign the will but were never shown the testator’s signature and it appeared that they didn’t even know that it was a last will and testament they were witnessing. Based upon this a challenge was made to the Court about whether the will was valid or not.

In discussing these facts the Idaho Court of Appeals specifically stated that the requirements for a valid will, set out in I.C. § 15-2-502, are that the will be signed by the testator and by two other persons, each of whom has “witnessed” the testator signing or acknowledging the will. In Re Estate of McGurrin, 113 Idaho 341, 342, 743 P.2d 994, 995 (Ct. App. 1987). The Court in McGurrin held that the language of the statute made it clear that witnessing meant more than merely perceiving the existence of a document and signing it. Id. at 345, 743 P.2d at 998. Rather, witnessing meant that the witnesses must perceive the act of the testator–signing or acknowledging the will and memorialize this perception by signing the document stating that they were a witness. Id.

In the Toms v. Davies case, the magistrate found that not one of the three persons who signed the purported will as a witness ever observed the Testator sign the document. The testimony of the witnesses indicated that not one of them knew before signing the will whether the Testator had affixed her signature because they only saw the one page which they signed. The Idaho Court of Appeals agreed that there was substantial evidence to support the magistrate’s finding that the Testator’s will was not signed by at least two persons, each of whom witnessed the signing of the will, as required by I.C. § 15-2-502.

According to the Court of Appeals, if the document was not signed before the witnesses, the Testator must acknowledge the signature as hers or as having been made by her authority. “There has been sufficient acknowledgment of her signature, in the absence of any question of fraud or undue influence, when a testator produces a document constituting a testamentary disposition of her property, with what purports to be her signature clearly visible thereon and asks that it be signed or witnessed by persons present.” Id.

The problem in the Toms v. Davies case was that the witnesses testified that they signed without ever seeing the Testator’s signature on the purported will. “Having before them only the one page bearing blank lines for signatures, the witnesses were not aware that they were signing the Testator’s will. From the testimony in the record, it cannot be said that the Testator sufficiently acknowledged the instrument to be her will to these witnesses. Thus, we further agree that there is substantial evidence to support the magistrate’s finding that the Testator’s will was not signed by at least two persons, each of whom witnessed an acknowledgment by the Testator of either her signature or the will, as required by I.C. § 15-2-502.” Toms v. Davies (in Re Estate of Alcott), 128 Idaho 303, 305-06, 912 P.2d 671, 673-74 (Ct. App. 1995).

As a result of the facts set forth above, the Idaho Court of Appeals determined that the last will and testament was in fact not valid. Because it was not valid the persons who would receive portions of the decedent’s estate we’re determined by the laws of intestacy rather than by the decedent’s will. This changed who received her property.

The takeaway lesson from this case is that it’s always important to follow the statutory requirements for a valid will in Idaho. These requirements are that the witnesses by there see the testator sign the last will and testament, or if the signature was done before, the testator then acknowledges to the witnesses that. The witnesses then each independently sign the last will and testament and the document is notarized.


When it comes to estate planning or probate you should never try to do it alone. If you have questions for yourself or for your family and loved ones, we can help. Call us toll free at 877-232-6101 or 208-232-6101 for a free consultation with Lane Erickson and the Racine Olson team of Estate Planning attorneys in Idaho. You can also email Lane Erickson directly at We will answer your questions and will help you solve your Idaho Estate Planning problems.

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