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

Get Legal Help Today

secured lock Secured with SHA-256 Encryption

Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

Full Bio →

Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jun 29, 2022

Advertiser Disclosure

It’s all about you. We want to help you make the right legal decisions.

We strive to help you make confident insurance and legal decisions. Finding trusted and reliable insurance quotes and legal advice should be easy. This doesn’t influence our content. Our opinions are our own.

Editorial Guidelines: We are a free online resource for anyone interested in learning more about legal topics and insurance. Our goal is to be an objective, third-party resource for everything legal and insurance related. We update our site regularly, and all content is reviewed by experts.

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.

Get Legal Help Today

Find the right lawyer for your legal issue.

secured lock Secured with SHA-256 Encryption