proving a will

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The procedure by which one persuades a probate court to acknowledge a testamentary document as a valid will.

The requirement of proving a will is a legal formality, and is usually satisfied by an executor’s demonstration that the will was signed and dated by the deceased person and that the signing and dating of the will was witnessed by at least two other persons.

A holographic will, or a will that is completely handwritten by the deceased and not witnessed, is considered valid in many states, as long as the executor is able to prove the will by producing relatives and friends of the deceased who testify that the handwriting on the will is in fact the deceased’s.

Besides an actual written instrument, there are other sources of proof that one may use to establish validity (or “proof of will”). One of Oregon’s probate statutes, for example, provides that “evidence of a will shall be the written instrument itself, or secondary evidence of the contents of the will, in the cases prescribed by law.” Secondary sources may also be used to determine the terms of a will when the written document is lost or improperly destroyed.

Oregon allows the following secondary sources:

1. Certified copies of the record of the proceedings in probating a will. Jones v. Dove (1876).

2. The contents of a lost or improperly destroyed will.

3. Recordings of declarations by the testator/testatrix.

4. Parol testimony of an improperly destroyed will. Stevens v. Myers (1919)

If documents provided as proof of a will are found to be fraudulent or unduly influenced, the will is considered invalid.

In a proceeding to probate a lost or destroyed will, the burden is on the proponent to clearly establish its execution and once established, the burden is on the contestant to prove its revocation.

 

Related Terms

Administration of Estate

Attest

Attestation

Burden of Proof

Codicil

Estate Planning

Heir

Last will and testament

Probate

Self-proving will

Testator

Will contest

Will contract

Will execution ceremony

[Last updated in November of 2020 by the Wex Definitions Team]