A last will and testament is the final word of a deceased individual in which he directs the disposition of his assets. The will may be old and crumpled and found inside a drawer somewhere or in pristine condition in a safe-deposit box. Provided a will meets statutory requirements, it is assumed genuine until and unless challenged before a court. The probate court has jurisdiction to accept or deny a will presented for probate.
An uninvolved bystander has no authority to contest a will. In order to challenge a will’s validity, a party must have standing. In other words, an individual must prove she would be damaged by acceptance of a forged or invalid will into probate. Further, this interested party must demonstrate just cause for her belief that the will is not genuine and for requesting a court deny its admission to probate.
All fifty states have statutory requirements regarding the acceptance of a will into probate by the court. The main requirement is a will must reflect the true wishes of the testator, or maker of the will. States such as Vermont and Alabama require that a will is witnessed by at least two individuals, while California and Texas accept holographic wills written entirely in a testator’s handwriting without the presence of witnesses, so long as the will complies with other provisions of the states’ probate statutes. Without attesting witnesses to verify the testator’s signing, however, verification of handwriting may be the only evidence a holographic will truly reflects the wishes of the deceased.
The signature on a will that is being challenged as a forgery may be closely scrutinized by a handwriting expert who may compare the will’s signature against the decedent’s signature on other documents. The challenging party may question a will signed with an “X,” or in frail handwriting, claiming the testator lacked mental capacity to execute a valid will. Physicians and witnesses may be called to testify as to the testator’s state of mind and physical condition at the time of the signing.
Often when a will is being signed, the testator is often required to initial and date each page of the will in the margin. This action is performed to discourage will tampering by an unscrupulous individual who might attempt to alter an original will by substituting pages to change the disposition of property.
A self-proving will contains signed testimony of witnesses, either as a part of the will or as a separate affidavit, in which they affirm before a notary public that they witnessed the signature and, to the best of their knowledge and belief, the testator was of sound mind and verified the document before them was his will. If a separate self-proving affidavit was signed, it should be presented to the court along with the will. Although a self-proving will generally eliminates the need for witnesses to appear before a probate court, a will contest action may require their presence.
If a will does not contain self-proving language, probate courts generally require a hearing to prove it is genuine, at which the witnesses appear and testify. If witnesses cannot be located or are also deceased, a handwriting expert or other individual familiar with a witness’s handwriting may verify the signature. Most states, however, recognize self-proving wills that eliminate the need for a witness to attend a probate hearing.
- Law Offices of Eric Holk: Why Holographic Wills are a Bad Idea
- Handwriting University International, Handwriting Analysis Training Site: Handwriting Expert Testimony Key to Los Angeles Probate Settlement. Forgery Trend Fuels need for more Court Qualified Forensic Document Examiners.
- The People’s Law Library of Maryland: Frequently Asked Questions About Wills
- Justia US Law: 2006 Alabama Code - Section 43-8-167 — Mode of proving will generally.
- Kansas Statutes: Chapter 59, Probate Code; Article 6, Wills
- Justia US Law: 2006 Alabama Code - Section 43-8-132 — Self-proved will - Form and execution; how attested will made self-proved; effect.
- Wills, Trusts and Estate Prof Blog, A Member of the Law Professor Blogs Network: Article on California Probate Code Section 6110(C)(2)
- Stockbyte/Stockbyte/Getty Images