The Testator's Later Will and the Notary's Archive
In 2019 a notary authenticated a will in which an elderly widow, Fatima, left one-third of her estate to a nephew and the residue to her two daughters. In 2022 Fatima appeared before a different notary and executed a second will revoking the first and leaving everything to her daughters in equal shares. The 2022 will was properly registered. Fatima died in 2024. The nephew now produces a handwritten paper dated 2023, signed by Fatima and witnessed by two neighbours, leaving him a specific apartment. The daughters contest it. The 2019 notary is asked to certify a copy of the 2019 will and to give evidence about Fatima's capacity at the time.
1. What is the status of each instrument, and how should the notary respond to the request to certify the 2019 copy and to testify?
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Status of the instruments:
- 2019 notarial will - authentic as to its execution, but revoked by the 2022 will if the 2022 will validly revokes it. A later will that expressly revokes earlier wills supersedes the earlier one.
- 2022 notarial will - the operative notarial testament, presumptively valid, registered.
- 2023 handwritten paper - its validity depends on the formal requirements for holograph or witnessed wills and on capacity and free consent at the time. It must be proved in the succession proceedings. It does not automatically override a notarial will; the court will assess authenticity, capacity, and any undue influence.
Certifying the 2019 copy: The notary may certify a true copy of an act in the archive, but the copy must be marked as a copy of a revoked instrument and must not be presented as the operative will. The certification attests to conformity with the archived original, not to current validity.
Testifying: The notary may give evidence of what she witnessed - appearance, identity, declaration, and her assessment of capacity at the time. She should be careful to distinguish observed facts from opinion. She must not disclose confidential content beyond what the proceedings require, and should seek the court's direction if in doubt.
Conflict check: The notary should confirm she has no interest in the outcome and no prior relationship with the nephew.
2. The nephew's lawyer asks the notary to state that Fatima was 'fully capable' in 2019 and to compare her capacity with 2023. How should the notary frame her evidence?
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Framing:
- Speak only to 2019. The notary can describe what she observed: whether Fatima appeared alone, answered questions coherently, understood the nature of a will, identified her heirs, and gave instructions without prompting. She can state whether the formal safeguards were followed.
- Avoid conclusory labels. 'Fully capable' is a legal conclusion. The notary should give factual observations and let the court draw the conclusion. If pressed, she may say she had no doubt at the time and explain why.
- Decline the comparison. The notary did not examine Fatima in 2023 and cannot opine on her capacity then. Offering a comparison would be speculation and could mislead the court.
- Address the 2022 act if relevant. If the 2022 notary's file is available, the court can compare; the 2019 notary should not vouch for another notary's act.
Professional duties engaged: truthfulness, impartiality, confidentiality limited to what is necessary, and avoidance of expert opinion outside her competence. The notary's evidence should be documented from her contemporaneous record, not reconstructed from memory.