Proof Requirements in a Contested Proceeding
When a will is contested, the stakes are higher. The court demands more evidence than in an uncontested case.
Family members or other interested parties may raise claims of undue influence. They may also challenge the testator's mental capacity at the time of signing.
If the will is not self-proved, the court requires testimony from at least one attesting witness. That witness must be in the state, competent, and able to testify.
If evidence concerning execution of an attested will which is not self-proved is necessary in contested cases, the testimony of at least one of the attesting witnesses, if within the state, competent and able to testify, is required. Due execution of an attested or unattested will may be proved by other evidence.
A.R.S. § 14-3406(A)If no attesting witness is available, other evidence can prove due execution. For example, someone may recognize the deceased person's signature. Expert handwriting analysis may also help.
The Advantage of a Self-Proving Will
A self-proving will carries significant weight in a contested proceeding. The court conclusively presumes that the signature requirements were met.
Other execution requirements are also presumed valid. However, a challenger can rebut that presumption with evidence.
If the will is self-proved, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal without the testimony of any witness upon filing the will and the acknowledgment and affidavits annexed or attached thereto, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit.
A.R.S. § 14-3406(B)The only way to overcome these presumptions is by proving fraud or forgery in the affidavit itself. This is a high bar. As a result, estate planning professionals recommend making every will self-proving at signing.
Contested will cases often involve questions about the testator's mental capacity. Medical records, expert testimony, and detailed evidence may all be needed. The process can take months and involve significant costs.
A self-proved will shifts the burden to the challenger. This means it is harder to overturn. Without that protection, the proponent must locate witnesses and build a stronger case.