What if a Witness to the Execution of a Will Dies?

A Will is valid if (1) it is in proper form, (2) it was signed by the person making the Will, (3), the person was an adult of sound mind, free from “undue influence,” coercion, fraud or mistake, and (4) it was properly witnessed by the required number of witnesses.

A Will that was valid when made remains valid, even if the person making the Will later becomes incompetent, or the witnesses should die. However, after the person’s death, the heirs who are seeking to have the Will admitted to probate have to produce some proof that the Will was properly signed and that’s where the witnesses come in. If the witnesses are unavailable, it can lead to delays and added expense for the heirs and the executor.

To anticipate the potential problems, “self-proving affidavits” are often used. They are statements signed by each of the witnesses under penalty of perjury, generally right after the Will is executed and witnessed, that the person making the Will did, in fact, sign it, appeared to be of sound mind, and was signing the Will freely. (In some states such statements must be signed before a notary public.) Your witnesses won’t have to testify as to your will’s validity when you die, for the affidavit speaks to the will’s validity and serves as extra insurance that they witnessed your signature. This “Self-Proving” Affidavit also avoids problems that may arise if the witnesses cannot be located.

In the absence of both witnesses and self-proving affidavits, particularly if someone may want to contest the Will, it may be necessary to demonstrate to the judge that the signatures of the person who made the Will, and those of the witnesses, are genuine. That can increase legal expenses, require handwriting experts, and added to a family’s grief after a death.

Among the options open for someone whose witnesses have died: (1) have the person draft a new Will—even one with the exact same provisions – with new witnesses and a self-proving affidavit, or (2) have him prepare a Codicil (essentially a minor amendment) to his existing Will that states that the existing Will is still valid.

Case Studies: Dealing With the Death of a Witness to the Execution of a Will

Case Study 1: Missing Self-Proving Affidavits

Mary executed her will with two witnesses, but neither she nor the witnesses signed self-proving affidavits. Unfortunately, one of the witnesses passed away before Mary’s demise. Upon her death, the absence of self-proving affidavits raised concerns about the authenticity of her will. Mary’s family faced the prospect of added legal expenses and possible challenges to the will’s validity.

To resolve this issue, Mary’s family consulted with an attorney. The attorney recommended hiring a handwriting expert to authenticate the signatures on the will. They also gathered additional evidence, such as video recordings of the will’s execution, to support its validity. Despite the added effort and expenses, the court ultimately accepted the will based on the presented evidence.

Case Study 2: Drafting a New Will With New Witnesses

John executed his will with two witnesses, both of whom have since passed away. Recognizing the potential complications that could arise, John decided to draft a new will with the exact same provisions as his original one. He enlisted the help of new witnesses and had them sign self-proving affidavits at the time of execution.

By taking this proactive approach, John ensured that his new will would be admitted to probate without significant delays or the need for extensive authentication procedures. The self-proving affidavits provided clear and compelling evidence of his will’s validity, protecting his intentions and minimizing potential legal hurdles for his heirs.

Case Study 3: Creating a Codicil to Affirm Will’s Validity

Sarah’s will was executed with two witnesses, one of whom passed away. Instead of opting for an entirely new will, Sarah decided to create a codicil to affirm the validity of her existing will. The codicil stated that despite the death of one of the witnesses, her will remained valid and unchanged.

Sarah’s decision to use a codicil allowed her to avoid the time-consuming and costly process of drafting a new will. It provided a simple and effective solution to address the issue caused by the witness’s death. Sarah also made sure to store the codicil with her original will and inform her executor about its existence to ensure its proper implementation after her passing.