Question:

My dad passed away last September and my 2 step sisters and I are headed to Probate Court due to the estate being over $ 100,000. My dad had a will, but it is not valid due to the fact of not having the 2 witness signatures (only his signature ). Can that will be used in court or have any legal standing?

Response:

On the surface, no. The will does not satisfy the requirements to be valid. However, the more modern approach as expressed in the Uniform Probate Code is to accept such wills with proof of the testator’s intent that the document be a will. It includes the following language:

Although a document or writing added upon a document was not executed in compliance with [the will definition], the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: . . . the decedent’s will;

Many states have adopted some form of the Uniform Probate Code’s expanded definition of what may constitute a will. So, if you take a look at your state’s will statute, you can see if it includes a similar provision. If so, your father’s will may be considered valid despite the absence of witnesses. However, you will probably need a court hearing in order for it to determine the validity of the will. It won’t be pro forma as with a standard will.

Sometimes wills that do not fit the standard definition are referred to as “holographic” wills, though that term is often used to refer to handwritten as opposed to typed out wills.

 

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