The Lawletter Vol 42 No 7
In the execution of wills, many testators utilize the optional execution of self-proving affidavits, where statutorily authorized, wherein the will execution witnesses sign a statement before an officer authorized to administer oaths affirming their observation of the testator's mental capacity and testamentary intent, as well as the signing of the will. A properly executed self-proving affidavit raises a legal presumption of due execution and eliminates the normal requirement mandating that witnesses to a will testify in court as to the authenticity of the will.
In practice, self-proving affidavits are normally created contemporaneously with the execution of the will, and some states' statutes mandate such simultaneous affidavit execution. However, some state statutes expressly allow self-proving affidavits to be executed at any time after the observed will execution. Thus, for example, we see both simultaneous and postexecution self-proving affidavit execution mentioned in Michigan's statutory provision on the subject:
(1) A will may be simultaneously executed, attested, and made self-proved by acknowledgment of the will by the testator and 2 witnesses' sworn statements, each made before an officer authorized to administer oaths under the laws of the state in which execution occurs and evidenced by the officer's certificate, under official seal . . . .
. . . .
(2) An attested will may be made self-proved at any time after its execution by the acknowledgment of the will by the testator and the sworn statements of the witnesses to the will, each made before an adminaafficer authorized to administer oaths[.]
Mich. Comp. Laws Ann. § 700.2504(1), (2).
While many statutes similarly allow for valid execution of a self-proving affidavit "any time" after the will execution ceremony, the general rule appears to be that such attestation must occur during the lifetime of the testator; an example of such a statute is found in the Texas Estates Code:
A will or testament that meets the requirements of Section 251.051 may be made self-proved at:
(1) the time of the execution of the will or testament; or
(2) a later date during the lifetime of the testator and the witnesses.
Tex. Est. Code Ann. § 251.103 (emphasis added).
Conversely, some states, such as New York, expressly affirm that such affidavit execution may be validly made even after the testator's death:
In addition to other procedures prescribed for the proof of wills, any or all of the attesting witnesses to a will may at the request of the testator or after his death, at the request of the executor named in the will or of the proponent or the attorney for the proponent or of any person interested, make an affidavit before any officer authorized to administer oaths stating such facts as would if uncontradicted establish the genuineness of the will, the validity of its execution and that the testator at the time of execution was in all respects competent to make a will and not under any restraint. The sworn statement of a witness so taken shall be accepted by the court as though it had been taken before the court, unless:
(a) a party entitled to process in the proceeding raises objection thereto or
(b) for any other reason the court may require that the witness or witnesses be produced and examined.
For the purposes of making the affidavit referred to in this section, after the death of the testator, the exhibition to the witnesses of a court-certified photographic reproduction of the will shall be deemed equivalent to the exhibition to them of the original will.
N.Y. Sur. Ct. Proc. Act Law § 1406 (emphasis added).
Consequently, when attorneys are involved in will executions for clients, the applicable statutes should be consulted to determine the timing allowed in which self-proving affidavits may validly be executed.