Proving a Will Under the Law
Broadly, a valid will is one that is in writing, signed by a testator with capacity, and witnessed. A properly executed will remains in force unless it is effectively revoked or replaced. A will may also be altered with a "codicil." Any individual in possession of a valid will must turn it over to the executor or file it with the probate court within a certain time after the decedent’s death, even if there will be no probate proceedings.
Proving a Will
A will may be proven in probate court by submitting either a self-proving affidavit, a new sworn statement signed by a witness, or the live testimony of a witness. A self-proving affidavit is a sworn statement signed by the will’s author (the "testator") and witnesses and attached to the will. Self-proving affidavits vary by state, but commonly they will state the names of the testator and witnesses, identify and reference the will (perhaps by mentioning the number of pages in the will), and note that the will was signed in front of the witnesses, who believed that the testator was of sound mind and under no constraint or undue influence at the time of signing. They are also typically notarized. A self-proving affidavit will make proving the will during probate proceedings easier, but a few states do not allow the use of self-proving affidavits or require only the will itself to be signed and witnessed. If a will does not include a valid self-proving affidavit, the court will likely require a witness to the will to submit a sworn and notarized statement or testify in person as to the validity of the will. The court may also ask for other evidence of a will’s validity, such as evidence of the decedent’s handwriting.
Valid Wills
The requirements for a valid will vary by state, but generally, a valid will must be in writing, signed and dated by the testator, and signed by at least one witness (but more likely two witnesses). A will signed by a person other than the testator in front of witnesses and at the direction of the testator because the testator could not physically sign the will may still be valid. However, an unsigned will may not be valid unless the court is convinced by other evidence that the testator intended the will to be valid. Some states have enacted laws specifically dealing with the validity of electronic wills, but others may use a more fact-specific approach.
State law may impose specific requirements for witnesses as well, such as a requirement that they sign the will at the same time as the testator. Witnesses must also ordinarily be at least 18 years old, and many states do not allow a beneficiary to sign a will as a witness, although sometimes this only invalidates their specific inheritance. Wills usually do not need to be notarized, but a notary may act as an additional witness. If there is any question that the will is not valid under state law (for example, if witnesses signed the self-proving affidavit but not the will itself), the probate court may hold a hearing to determine whether the will is valid.
Out-of-State Wills
A will signed in a different state than the state where the decedent lived when they died is an out-of-state will. An out-of-state will’s validity is generally evaluated based on the laws of the state in which it was signed.
Holographic Wills
Wills that are written by the testator and signed but unwitnessed are called holographic wills. A holographic will may or may not be valid, depending on state law. Questions such as whether the document was in fact written by the decedent or whether the decedent was of sound mind when they signed it may arise when a will is holographic. It may also be unclear whether the decedent actually intended that the document be a will in the first place or intended that the document replace or modify a pre-existing will.
Multiple Wills
Ideally, a testator should destroy an old will after making a new will, but this does not always happen. If more than one will still exists when the testator dies, the most recent will is most likely the valid will. The most recent will may even contain a clause revoking any previous wills and codicils. However, an executor should not dispose of an old will. The old will may substitute for a new will if the new will is later found to be invalid or if there is evidence that the old will could act as a codicil.
Only a Copy
While a probate court will always prefer an original will, there are instances in which a copy of the will may suffice. Most courts will first presume that if there is evidence that a decedent had previously executed a will, but it cannot be found, the will was revoked. Therefore, in order to use only a copy of the will, an executor will need to prove that the will was not revoked. Evidence that the decedent did not have a change of heart about the will before their death, including witness testimony, may be helpful in proving that a will was not revoked. For instance, the lawyer who prepared the will or witnesses who talked to the decedent about the will may be helpful in proving that the original will existed, that it was not revoked, and that the copy accurately reflects the original document.
Lost Wills
If there is no original or copy of the will, but there is other evidence that the will existed, a court may accept the will’s terms. Most probate courts have specific procedures for proving the existence and the terms of a lost will. This may involve introducing witnesses who signed the will and had knowledge of what the will said, or other evidence regarding the validity and contents of the will. An experienced probate attorney may be helpful in this situation.
