Also known as: subscribing witness · attesting witnesses
Written by attorneys — see sources below.
Persons who affix their signatures to a will to attest to the testator's execution of the instrument under applicable formalities.
Stephen Shaw drafted a typed will leaving his estate to his niece. He signed the document at the kitchen table. Samuel Soto and Sophia Singh then signed their names on the designated lines while Stephen remained present. The signatures satisfied the requirement for two attesting witnesses on the written instrument.
Samantha Stone signed her will in the presence of two witnesses at her attorney's office. The witnesses signed immediately afterward. A notary then administered oaths and attached a certificate under seal reciting the acknowledgments. The procedure rendered the will self-proved without further testimony at probate.
Solomon Silver died leaving a will witnessed by two neighbors. After appointment of the executor, a creditor filed a claim. The probate court admitted the will on the testimony of one subscribing witness who confirmed the execution ceremony. The admission triggered the notice period for creditors.
In November 1978, H. Everett Pope, Jr., was admitted to St. John Medical Center, a hospital in Tulsa, Oklahoma. On April 2, 1979, while still at the hospital, he died testate. His wife, appellee JoAnne Pope, initiated probate proceedings in the District Court of Tulsa County. The court entered an order setting a hearing, admitted the will to probate, and named appellee as executrix, issuing letters testamentary to her. Following her appointment, the court ordered appellee to immediately give notice to creditors. Appellee published notice in the Tulsa Daily Legal News for two consecutive weeks beginning July 17, 1979. The notice advised creditors that they must file any claim against the estate within two months of the first publication. Appellant Tulsa Professional Collection Services, Inc., a subsidiary of St. John Medical Center and the assignee of a claim for expenses connected with the decedent's hospital stay, did not file a claim with appellee within the two-month period. In October 1983, appellant filed an Application for Order Compelling Payment of Expenses of Last Illness in the District Court of Tulsa County. The district court denied the application. The Oklahoma Court of Appeals affirmed the district court's judgment. Appellant then sought rehearing, raising a due process challenge to the nonclaim statute's notice provisions for the first time. The Court of Appeals rejected the due process claim on the merits in a supplemental opinion. Appellant sought review in the Supreme Court of Oklahoma, which granted certiorari and affirmed the Court of Appeals' judgment. The United States Supreme Court noted probable jurisdiction and heard the case.
View caseThe Restatement requires only that the will be in writing and signed by the testator and the specified number of attesting witnesses under applicable procedures. No mental-state or disclosure requirement for the witnesses appears in the rule text itself.
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An individual generally competent to be a witness may act as a witness to a will. The signing by an interested witness does not invalidate the will or any provision of it under the applicable statute.
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Nearly all states require two attesting witnesses. A few states once required three, but that number has declined.
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If evidence concerning execution is necessary, the affidavit or testimony of one attesting witness is sufficient. When the will is not self-proved, the testimony of at least one attesting witness within the state is required if available.
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A minor is a valid witness unless the minor was not old enough to observe, remember, and relate the facts occurring at the execution ceremony.
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