Also known as: due executions · proper execution · valid execution
Written by attorneys · grounded in primary & secondary sources — see below
Compliance with the formal requirements prescribed by statute for the valid execution of a will.
Denise Donovan offered a will for probate after her uncle's death. She presented the signed document and an attestation clause from two witnesses who were available to testify. The court accepted the clause as raising a rebuttable presumption of due execution under the applicable statute, shifting the burden to any contestant to prove lack of capacity or undue influence.
Danielle Dixon executed an international will before an authorized person in State A. The authorized person attached and signed the required certificate confirming that all statutory execution steps had been followed and delivered a copy to Danielle. The certificate established formal validity of the will under the governing provisions.
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Darius Dixon's relatives conspired to prevent him from executing a new will that would have benefited his intended beneficiaries. The court recognized that the conspiracy frustrated the testator's intent even though the existing will satisfied formal execution requirements. The disappointed beneficiaries recovered on a constructive trust theory without invalidating the executed instrument itself.
Diane Dawson's attorney prepared her will with a mistaken provision but the testator signed the document in the presence of two witnesses who attested it. The court permitted extrinsic evidence to show that the testator had executed the will in reliance on the attorney's erroneous advice. The will was admitted to probate because the formal execution steps had been satisfied.
The proponent of the will must establish prima facie proof of due execution in all cases. If the proponent also files the petition, the proponent must additionally show prima facie proof of death and venue. The contestant then bears the burden of proving lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation.
Supporting sources
A signature on a self-proving affidavit attached to the will counts as a signature on the will itself when necessary to prove due execution. An attestation clause signed by the witnesses also raises a rebuttable presumption that the recited events occurred.
Supporting sources
The court first determines whether the later will is entitled to probate. Only if the later will fails probate does the court then consider whether the earlier will qualifies for probate.
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Yes. Due execution does not require that the testator's or witnesses' signatures appear on the same page as the dispositive provisions. Writings on envelopes or other media may be included when the physical connection supports an inference that all pages were present and intended as part of the will at execution.
Supporting sources
…defeated by any argument that to give plaintiffs judgment would be to annul those provisions of the Statute of Wills requiring due execution by the testator. Such a contention, if valid, would have required the dismissal in a number of the suits herein cited. The answer is in Ahrens v. Jones (169 N. Y. 555, 561, supra ):…