Administration of Estates; Probates of Wills

Subject:

Administration of Estates; Probates of Wills

Requested By:

Honorable Carl G. Smith Clerk of Superior Court Iredell County

Questions:

(1)

May a will be admitted to probate where it includes a certificate executed in the form prescribed by N.C.G.S. § 31-11.6 (relating to self-proved wills), but where no separate attestation was made?

(2)

If the answer to question (1) is no, may the witnesses who signed the certificate later go before the court and attest the will and thereby have the will admitted to probate?

Conclusions:

(1)

No.

(2)

No.

N.C.G.S. § 31-11.6 (Supp. 1977) provides that:

An attested written will executed as provided by G.S. 31-3.3 may at the time of its execution or at any subsequent date be made self-proved by the acknowledgement thereof by the testator and the affidavits of the attesting witnesses, each made before an officer authorized to administer oaths under the laws of this state, and evidenced by the officer’s certificate, under official seal, attached or annexed to the will in form and content substantially as follows. . . .

The certificate is set out in the statute. It states, in part, that the testator declared that he had signed the will and executed it in the presence of the witnesses or acknowledged his signature to them. The witnesses make a similar declaration. Space is provided for the signatures of the testator, witnesses and acknowledging officer. The statute then provides that "The sworn statement of any such witnesses taken as herein provided shall be accepted by the court as if it had been taken before such court."

The purpose of this provision is to allow for the ante-mortem proof of a written attested will. It simply provides an alternative method of probate to the others set out in N.C. G.S. 31-11.6 does not in any respect displace of amend the requirements of N.C. G.S. 31-3.3 governing attestation of wills. See, e.g., In Re Estate of Kavcic, 341 So.2d 278 (Fla. App.1977). The whole thrust of the statute contemplates a will that has already been attested by the testator and witnesses. This is self-evident from the language of the certificate which requires a declaration by the testator and witnesses that they had signed the will.

It is interesting to note that Section 2-504 of the Uniform Probate Code (U.L.A.) § 2-504 (1977) read substantially like N.C. G.S. 31-11.6. However, Section 2-504 was amended (Supp.1978) to read, in part,

(a) Any will may be simultaneously executed, attested, and made self proved by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths. . . .

The comment to this amendment states that:

(The) original text (of this section) authorized only the addition to an already signed and witnessed will, of an acknowledgment of the testator and affidavits of the witnesses thereby requiring testator and witnesses to sign twice even though the entire execution ceremony occurred in the presence of a notary or other official.

If the will was not properly attested, the witnesses who signed the certificate may not later go before the court and attest the will and thereby have the will admitted to probate. Attestation must be made in accordance with N.C. G.S. 31-3.3 which requires that the witnesses sign after the testator and in his presence. In re Thomas, 111 N.C. 409,16 S.E.226 (1892).

This could obviously not be done if the testator had also failed to sign the will in accordance with

N.C. G.S. 31-3.3.

Rufus L. Edmisten Attorney General

Lucien Capone, III Associate Attorney General