Execution of Wills
Just as with many other legal documents, wills are not legally valid unless the document has been properly signed. However, unlike most other legal documents, a will’s instructions are never given any legal effect or followed until after the document’s maker, or “testator”, is deceased.
Of course this also means that the only person who can say with absolute certainty that he or she signed that will is unavailable. The testator is also unable to verify the circumstances surrounding the execution of the will, such as whether he read and understood the will’s contents, what his state of mind was at the time, and why he chose to make a will with those instructions.
Every process or action that can bring individual enrichment or wealth has the potential for fraud and impropriety. With the ability to control the transfer of all the property that a person owns and with the testator always being deceased, wills may be particularly susceptible to improper action.
As one method to curtail the occurrence of fraud or mistake, every U.S. state (except one) requires witnesses to the execution of every written will. Witnesses provide people who can verify the testator’s signature after death, as well as testifying to the testator’s competence if necessary.
When a will is offered for probate, the testator’s signature must be verified or “proven” before it can be accepted and followed. A will is generally proven when two people who are familiar with the signature of the purported testator appear before the appropriate government authority, such the Register of Wills, to verify that they recognize the signature to that will as belonging to the person who is claimed to be the testator.
This process is completed when those who appear to verify the signature sign an affidavit which indicates that they are personally familiar with the testator’s signature and that the signature on the will belongs to that person.
Rather than require each will to be proven after death, every state (except four) has laws that provide for notarization of the testator’s signature at the time the will is executed.
Providing a method to prove the testator’s signature prior to death not only expedites the probate process by allowing immediate acceptance of an otherwise valid will, it also prevents the possibility of having those who create a false will from also appearing to prove the forged signature.
Notarization of the testator’s signature is performed on a separate sheet which is attached to the will and is most often referred to as a “self-proving affidavit.” Although notarization does not ensure that any will is legally valid, it provides a method of assuring with absolute certainty that the person who is identified as the testator placed his or her signature to that will.