§ 302 EXECUTION REQUIREMENTS

• Jurisdiction: South Carolina
• Section: Chapter 3 Wills

§ 302 Execution requirements

§ 302.1 Statutory Formalities

The technical execution requirements imposed by the SCPC are basically three-fold.⁴¹ First, the will must be in writing.⁴² Second, the testator or his proxy, at his direction and in his presence, must sign the will.⁴³ Third, two persons must witness either the signature of the testator, or of his proxy, or an acknowledgment by the testator of his signature or of his will.⁴⁴ The Code does not require that the witnesses sign in the presence of the testator or of each other; nor does it specify a time at or by which either witness must attest.⁴⁵

Section 62-2-502. Execution.

Except as provided for writings within section 62-2-512 and wills within Section 62-2-505, every will shall be:

(1) in writing;

(2) signed by the testator or signed in the testator's name by some other individual in the testator's presence and by the testator's direction; and

(3) signed by at least two individuals each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will.

Example

Testator (T) types and signs his will in private. A week later, he acknowledges his signature thereon to W1 (a witness), who does not attest at that time. A month thereafter, he acknowledges his will to W2 (a witness), who does not see T's signature thereon nor does he sign at that time. Six months later, W1 privately affixes his signature to the will. Ten months later, W2 signs. T then dies. The SCPC presumably would uphold the will as properly executed.

In Franklin v. Chavis,⁴⁶ the 91-year-old testator signed a will while hospitalized. The will was prepared by an insurance agent who was not a lawyer. He printed out a Quicken will form and filled in the blanks, which he brought to the hospital and had the testator sign. The will named him as personal representative. In the underlying action, the testator's grandnieces sought to invalidate the will for lack of capacity and undue influence. However, the grandnieces brought the immediate action under the original jurisdiction of the Supreme Court to determine the unauthorized practice of law.

The Supreme Court stated that "[t]he preparation of legal documents constitutes the practice of law when such preparation involves the giving of advice, consultation, explanation, or recommendations on matters of law." The Court noted that the drafter chose the will form, filled in the form with information provided by the testator, and orchestrated the will's execution. The Court stated that these facts alone were not conclusive, but evidence of the testator's involvement in the process was lacking. For example, no evidence indicated that she reviewed the will after it was produced. Moreover, although the drafter claimed that he was merely a scrivener, the Court found no proof that he recorded her instructions and merely transferred that information onto the will form.

Consequently, the Court rejected the "mere scrivener" argument. "We construe the role of 'scrivener' in this context to mean someone who does nothing more than record verbatim what the decedent says." Because the drafter's involvement in the process exceeded that of a mere scrivener, the Court concluded that he engaged in the unauthorized practice of law. The Court found the drafter's lack of compensation irrelevant.

The Court held similarly as to a power of attorney created by the nonlawyer drafter, which he used to represent her at a real estate closing. The Court noted that the form was not a simple fill-in-the-blanks document but conferred various legal rights that would require legal advice in the preparation process.

However, the Court concluded that the drafter's assistance in the preparation of two probate Court forms—waiving the right to administer and bond—was not the unauthorized practice of law. Here, the Court found that the forms, although with legal implications, were distinguishable from the will and power of attorney because they were straightforward, provided by the Court to the public, and merely required the filling in of basic information: names, addresses, and dates. The Court found no evidence that the drafter gave legal advice about the forms.

The Court agreed with the grandnieces' request to enjoin the drafter from engaging in the unauthorized practice of law in the future. The drafter did not object because he stated he had no intention to do so anyway. However, the Court refused to use the unauthorized practice as a ground for removing the drafter as personal representative, but did rule that he was not entitled to a fee for serving because the fee would result from his unauthorized practice of law.

Similarly, the Court refused the grandnieces' request to invalidate the will or to charge the drafter with fees expended by the estate, leaving those issues instead for the lower court to resolve in the underlying action.

Except for the disgorgement of personal representative fees, the grandnieces enjoyed, or suffered, a Pyrrhic victory. The main thrust of the opinion agreed with their argument that the drafter engaged in the unauthorized practice of law, but the sanction of enjoining him from future acts had no bite because he had no intention to do so. Perhaps the real purpose of the original jurisdiction action was a shortcut to invalidate the will, but that fight was deferred until another day. The state Supreme Court may yet get to decide whether...