Proof Requirements in a Contested Proceeding
When a will is contested, the stakes are higher and the court demands more. If the will is not self-proved, Arizona law requires testimony from at least one of the original attesting witnesses, provided that witness is 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, due execution can still be proved by other evidence. This might include testimony from someone who recognized the testator's signature, expert handwriting analysis, or other documentation supporting that the will was properly signed.
The Advantage of a Self-Proving Will
A self-proving will carries significant weight in a contested proceeding. When the will includes a properly executed self-proving affidavit, the court conclusively presumes that the signature requirements were met. Other execution requirements are also presumed valid, though that presumption can be rebutted.
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, which is exactly why estate planning professionals recommend making every will self-proving at the time of signing. It provides a layer of protection that matters most when it is needed most.
