Please Don't Sign Yet: Lessons From Wills for Heroes
On Saturday, October 24, I had the opportunity to participate in "Wills for Heroes," a program where volunteers prepare and notarize estate planning documents for first responders and their families, this time at the Gaithersburg-Washington Grove Volunteer Fire Department. It was a great success: 34 first responders and family members were able to use the program. I also had the opportunity to eat my breakfast in the photo for the press release, which I am counting as a career highlight.
The event was organized by the Maryland State Bar Association's Young Lawyers Section and co-sponsored by the Bar Association of Montgomery County, with support from the Montgomery County Volunteer Fire-Rescue Association. Attorneys helped clients prepare three kinds of documents: wills, advance medical directives, and financial powers of attorney. Together, they let people decide who handles their family, their finances, and their medical care before an emergency happens. Volunteer attorneys and notaries donated their Saturday, and the attorneys received specialized training before meeting with clients.
The program began after 9/11, when an attorney in Columbia, South Carolina, started offering free wills, powers of attorney, and health care documents to local firefighters. It grew from a painful lesson: many of the first responders who died that day had no wills to protect their families. At an event, volunteer attorneys, notaries, and witnesses set up in one place and work through a client's questions, one first responder at a time.
Christopher Jennison, who chairs the MSBA Young Lawyers Section, has served as an EMT since 2009, and is president of the Bethesda-Chevy Chase Rescue Squad, put the need simply. First responders spend their time preparing for everyone else's emergencies, but do not always take the time to prepare for their own. Wills for Heroes helps close that gap.
It was an amazing day, and very well planned by the organizers. But since nothing is perfect, there were a few hiccups. At one point I nudged the computer I was using the wrong way and had to switch to another one. And several times, people needed second copies of documents printed because of misspellings. (I apparently forgot, once, how to spell my own name!)
Stop! Not yet!
The thing lawyers are constantly on the lookout for is people jumping the gun on signing. Everyone makes sure clients signed certain documents, and then we would have to frantically say "stop!" when they reached for the final ones.
I understand the eagerness. Who wants to spend extra time with a lawyer? And there were pens, and a very clear signature block, so why wouldn't someone be helpful and save a little time?
Here is why it is not as helpful as it looks. A will is not just a document with a signature at the bottom. It must be signed in a particular way, in front of particular people, in a particular order. A signature on the right line at the wrong moment can leave the document short of what the law requires.
Why a will needs a ceremony
Every state requires certain formalities to make sure a will is valid, and the formalities differ from state to state. In Maryland, a will generally must be in writing and signed by the person making it, or by someone else in that person's presence and at their direction. It must also be attested and signed by two or more credible witnesses in the testator's presence. Maryland has also begun to allow electronic wills and remote witnessing under specific conditions, but the same logic applies.
The District of Columbia is similar, and in some ways less forgiving. Under D.C. Code § 18-103, a will is void unless it is in writing, signed by the person making it (or by someone else in their presence and at their direction), and attested and subscribed by at least two credible witnesses in the testator's presence. A few features of D.C. law are worth knowing:
A notary is not a witness. In In re Estate of Henneghan (D.C. 2012), a will carried only the decedent's signature and a notary's seal. A probate judge admitted it based on affidavits from people who knew about the signing. The D.C. Court of Appeals reversed and held the will void because it lacked two attesting witnesses.
Timing matters. D.C. cases look for the testator and the witnesses to sign at substantially the same time and in each other's presence. In one federal case applying D.C. law, a will failed even though everyone signed, because the court could not be sure the signatures happened together. Text the testator added after the witnesses had signed was held void.
Witnesses should not be beneficiaries. A gift to someone who attests the will is generally void, with limited exceptions (§ 18-104).
No self-proving affidavit for a paper will. Like Maryland, D.C. has no statutory self-proving affidavit for an ordinary paper will, so the witnesses' sworn statements, not a notary's stamp, prove the signing in probate.
No unwitnessed handwritten wills. D.C. does not recognize them.
Electronic wills have been allowed under a separate chapter since March 2023, with their own rules.
Other states vary. Some recognize handwritten wills that no one witnessed. Maryland generally does not, apart from a narrow exception for service members. Some states favor a notarized "self-proving" affidavit. In Maryland, a notary is not what makes a paper will valid. The witnesses are.
That is just one document in the packet. A power of attorney follows a different choreography. Maryland generally requires the principal's signature to be acknowledged before a notary and also witnessed by two adult witnesses, and the notary may count as one of them. Health care directives have their own signing rules too.
So at an event like Wills for Heroes, the documents in one client's folder may each need a different mix of signer, witnesses, and notary. That is why the order matters, and why the signing is a short, supervised ceremony, not a stack of pages to sign on the way out.
What the formalities protect, and what can go wrong
Maryland's highest court has said the point of the will-signing rule is to remove uncertainty and to prevent fraud and pressure on the person making the will. Witnesses are there to confirm that the signer knew what the document was and signed willingly. Doing it together, in order, makes that easy to prove years later, when the signer can no longer explain.
What happens when the order slips? Sometimes the will survives. In Slack v. Truitt, a man signed his one-page handwritten will and only then asked two neighbors to sign as witnesses. One neighbor thought she was signing a petition and could not recall seeing his signature. The court explained that when a will is signed outside the witnesses' presence, the signer must acknowledge the signature or declare the document to be a will, and conduct can be enough. The will was upheld.
But look at what it took. The Orphans' Court and the circuit court both refused to admit the will. An intermediate appeals court reversed. The state's highest court, then called the Court of Appeals, ruled over one dissent about two and a half years after the document was signed. A signature that took moments left the estate waiting through four courts.
Out-of-order signing causes smaller, practical problems too:
Wasted signatures. When there is a misspelling and a document is reprinted, any signature on the old pages is wasted. A signed page with an error is worse than an unsigned one.
Missing eyes. If the witnesses and the notary are not in the room, the paper cannot show what the law needs it to show.
Competing versions. Two signed copies with slightly different spellings invite questions later, usually when no one is left to answer them.
Why every formality matters more for non-marital families
Every family needs a valid will. Families without a marriage license need it more, because the law's safety nets are built around marriage.
If a will fails, the estate passes under the intestacy statute, which is built around legal relationships. In D.C., for example, § 19-302 sets the share of a surviving spouse or surviving domestic partner, meaning someone who registered the partnership under D.C. law. An unmarried, unregistered partner, a second or third partner in a polyamorous household, a co-parent who is not a legal parent, and chosen family do not appear in that statute at all. If their will is defective, the law treats them as strangers and the estate goes to relatives.
That is why formalities matter even more for these families:
There is no fallback. A married person's family has a backup if a will fails or is thin. A spouse, or a registered domestic partner in D.C., inherits under the statute and can generally claim a statutory share against a will that leaves too little. A partner without that status has neither, so the will is the whole plan.
Those who would inherit are the likely challengers. When a will leaves everything to a partner or chosen family, relatives who would inherit under the statute have the motive and the standing to look for flaws. A missing witness is the easiest flaw to find. In Henneghan, a family member challenged a will on exactly that ground and won.
Witness choice is harder. The natural witnesses, such as a partner, co-parent, or close friends, are often beneficiaries, and in D.C. a gift to an attesting witness can be void. Use disinterested adults who can be reached years later, and keep their contact information with the will.
A clean signing is evidence of free will. Relatives who are cut out sometimes claim that a partner pressured the signer. A supervised signing with disinterested witnesses is the best answer to that story.
Guardian nominations ride on the will. If a will names a guardian for a child and the will fails, the nomination may fail with it, leaving the decision to a court.
The other documents face the same problem. Unmarried partners usually lack default authority over medical and financial decisions. Powers of attorney and health care directives are how they get it, and each has its own signing rules in Maryland and D.C.
Registering a domestic partnership in D.C. changes some of the default rules, but it does not replace a will. For families the law does not recognize by default, documents do the recognizing, and they only work if every step is followed. That is why I say "stop" when a pen is in reach.
If you are about to sign estate planning documents
Wait for the signal. A pen and a clear signature block are not an invitation. Ask who needs to be in the room first, and in what order the documents get signed.
Check the names before you sign. Spelling, dates, beneficiaries, and the people you chose to act for you. (I can personally vouch for how easy it is to misspell a name.)
Treat signing as a group activity. You, your witnesses, and the notary should be there together, with each document handled in the right order. Remember that a notary's stamp does not replace witnesses and choose witnesses who will not inherit.
Sign the final version. If a page is reprinted, assume the old signature does not carry over.
Keep the original safe and tell someone where it is. A valid document no one can find does not protect anyone.
The program ran smoothly because the volunteers and organizers cared about details like these. Special thanks to Vidhi Kumar and Bill Kiniry III of DLA Piper, who led the organizing and coordinating, from recruiting volunteers to training attorneys to managing logistics. Thank you also to the Bar Association of Montgomery County, the Montgomery County Volunteer Fire-Rescue Association, and the Gaithersburg-Washington Grove Volunteer Fire Department, and to every attorney, notary, and volunteer who gave up a Saturday. Most of all, thank you to the first responders and family members who made time to plan ahead. As Jennison said, "Public service doesn't end when we leave the courtroom or take off the uniform." If you are a first responder, look for a Wills for Heroes event near you.
This post is general information, not legal advice. Will and signing rules vary by state, so check the rules where you live.