Testamentary Formalities – Attested Wills In North Carolina
In North Carolina, the most common type of will is the attested written will, governed by N.C. Gen. Stat. § 31-3.3. An attested will is witnessed by others. Attest meaning “to declare to be true, to bear witness to, certify”. The statute has four requirements, all of which are necessary for a valid attested written will.
(1)First, an attested written will must be signed by the testator and attested by at least two competent witnesses. This means that the person who seeks to create her last will and testament must sign the will, and two competent witnesses must sign as well.
(2)Next, the testator must, with intent to sign the will, do so by actually signing or by having someone else in the testator’s presence and at the testator’s discretion sign the testator’s name on the will. In other words, the testator must intend to sign the will and either sign the document herself, or direct someone else to do so in her presence. The ability to direct someone else to sign a will allows a testator to make a will if she is mentally competent, but physically unable to sign. However, the testator has to actually direct the person to sign the will in her presence.
(3)Third, the testator must signify to the attesting witnesses that the instrument is the testator’s instrument by signing it in their presence or by acknowledging to them the testator’s signature previously written on the will. This requirement ensures that the witnesses actually witness the testator’s intent to make that particular will. The testator need not have both witnesses sign at the same time. Under this statute, the testator could sign in front of one witness and then acknowledge the signature to another witness at a later point.
(4)Finally, the attesting witnesses must sign the will in the presence of the testator, but need not sign in the presence of each other. This allows the testator to procure the signatures of two witnesses without having to coordinate both witnesses at the same time. As above, the focus is on whether the witnesses are able to determine that the testator’s is making a will.
In will caveats, parties often overlook the issue of proper will execution, which the party offering the will must prove. Attesting is one of the reasons for challenging a will. If you have an estate litigation matter, contact the Fiduciary Litigation attorney at Hendrick Bryant concerning challenging the validity of a will in North Carolina.
Kirk Sanders at Kurtz Whitley knows the requirements for wills and how to put those requirements to work for his clients, whether he is creating or attacking a will (contesting a will in NC). Attorney Sanders is experienced in how to contest a will in North Carolina.
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