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How to Self-Prove a Will

A last will and testament is a legal document that must be filed with a probate court after your death. California law normally requires a will must be signed by the maker (testator) and at least two other persons as witnesses. The witnesses need not read or understand the contents of the will, but they must witness the testator’s signature and his declaration that the document is, in fact, intended to serve as a last will and testament.

In most cases, the witnesses play no further role once they have signed the testator’s will. But if a dispute emerges after the testator’s death, a probate judge may require one or all of the witnesses to testify as to the authenticity of the will. Since it may be difficult to locate witnesses what may be years after the fact, California and most states permit what are known as “self-proving” wills. A self-proving will includes an affidavit-that is, a declaration witnessed by a Notary Public-attesting to the authenticity of the document. In other words, the affidavit “proves” the will is authentic without the need to locate and produce the witnesses.

Dealing With Deceased Witnesses

What happens, however, if there is a disputed will without a self-proving affidavit? A recent decision by the Supreme Court of Georgia offers a cautionary tale. The Georgia justices reviewed a will purportedly made by the late Eulady Thomas in 2007, leaving her entire estate to her two caregivers. After Thomas died in 2011, members of her family challenged the validity of the will, in particular the signatures of Thomas and the two witnesses.

In Georgia, a will contest may be tried before a jury. (In California such contests, like all probate matters, are tried before a judge.) Unfortunately, by the time the jury heard the case, both witnesses had died. The jury still returned a verdict in favor of the will and its proponents, but the trial judge chose to overrule the jury and entered a directed verdict in favor of the Thomas family.

The Georgia Supreme Court ultimately found the trial judge erred in substituting his judgment for that of the jury. There was enough of a factual dispute surrounding the validity of the will’s signatures to justify the jury’s decision. The justices noted that at least one of the witnesses testified during a pre-trial deposition, which was then read to the jury. That alone could prove the will’s validity under Georgia law.

Avoiding Unnecessary Litigation

Of course, if the will had a self-proving affidavit, none of this would have been necessary. Just one extra step can prevent years of litigation, which, after all, is one of the key reasons to have a will in the first place. That is why when you choose to make a will, or any other legal document, you should work with an experienced California estate planning attorney. Contact the Law Office of Scott C. Soady in San Diego today if you have any questions.

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