Can a notary serve as an attesting witness to prove will execution in Utah? In re the Estate of Juanita Marie Valcarce Explained

In In re the Estate of Juanita Marie Valcarce, the Utah Court of Appeals addressed whether a notary who was present during will execution could serve as an attesting witness under Utah Code section 75-3-406(1) to prove proper execution of a contested will.

Background and Facts

Juanita Valcarce died in 2010, and her brother John sought to probate a 1991 will prepared by attorney Jeff Thorne. The original will had been lost, and only an unsigned copy remained in Thorne’s files. Paul Valcarce, another brother, contested the will’s validity, arguing insufficient evidence of proper execution. At trial, Thorne testified about his firm’s usual practices regarding will execution and retention. He explained that the original would have been kept with the copy if it had not been properly executed, and testified that he had acted as the notary during the will’s execution. Edward Valcarce corroborated this testimony, stating he had seen an executed will at the decedent’s home six months before her death.

Key Legal Issues

The primary issues were whether Thorne could serve as an attesting witness under section 75-3-406(1) despite acting as the notary, and whether the evidence sufficiently established proper execution by a preponderance of the evidence.

Court’s Analysis and Holding

The court held that a notary present during will execution who could assess the testator’s competency may serve as an attesting witness. Examining case law from other jurisdictions, the court found nothing in Utah’s Uniform Probate Code prohibiting a notary from serving as an attesting witness. The court noted that Thorne met with the decedent, took notes about her intentions, prepared the will, and acted as notary during execution—making him familiar with her mental capacity and intentions. The court also clarified that the proper standard for proving will execution is preponderance of the evidence, not clear and convincing evidence, as the legislature did not expressly displace the pre-UUPC standard.

Practice Implications

This decision provides important guidance for probating lost wills in Utah. Practitioners should secure testimony from drafting attorneys about their office practices, as courts may rely on usual practice evidence even without specific recollection of the particular execution ceremony. The decision also confirms that notaries who participate in will executions can serve dual roles as both notaries and attesting witnesses, provided they meet the requirements for witness competency and attestation.