There may be a time when you come across an old will of someone who recently died. Perhaps it is discovered in an old file cabinet. However, the witnesses to the will may have died as well — or they may not be able to be found.

This leads to the questions: Is the will valid? How should you proceed? This article explains what is necessary to have a properly executed will and what evidence is necessary to support the proposition that an old will is valid.

Execution and Attestation Requirements

Generally, every will must be:

  • In writing;
  • Executed; and
  • Attested.

The exceptions are for nuncupative (oral) and holographic (hand written) wills — usually with regard to individuals using them in the armed forces. In most cases, the testator must, at some time during the ceremony or ceremonies of execution and attestation, declare to attesting witnesses that the instrument with his or her signature is his or her will.

The testator should sign the will. Generally, there should be at least two attesting witnesses, who at the request of the testator, should sign their names and affix their residence addresses at the end of the will.

What is attestation? It is the process of witnesses certifying that the will has been executed before them in a manner required by law. When there is an attestation clause to a will, unsubscribed by witnesses, the presumption, though slight, is that the will is in an unfinished state. Therefore, it must be removed by some extrinsic circumstances.

Proof of Execution

Standard practice would be to have the witnesses sign an affidavit stating such facts that would, if not contradicted, establish:

  • The genuineness of the will;
  • The validity of its execution;
  • That the testator at the time of execution was in all respects competent to make a will; and
  • The testator was not under any restraint.

In most cases, the attesting witness affidavit eliminates the need to receive testimony of at least one of the witnesses as to the validity of the will — unless it is objected to.

There are some cases, where there is no affidavit of attesting witnesses, the will is objected to, and witnesses cannot be found. In those situations, some states allow for the “ancient document rule.”

Ancient Documents

An ancient document, in the laws of evidence, refers to both a means of authentication for a piece of documentary evidence, and an exception to the hearsay rule.

With respect to authentication, an “ancient document” is one that may be deemed authentic without a witness to attest to the circumstances of its creation because its age suggests that it is unlikely to have been falsified in anticipation of any litigation in which it is introduced.

Under the Federal Rules of Evidence a document is deemed authentic if it is:

1. At least twenty years old;

2. In a condition that makes it free from suspicion concerning its authenticity; and

3. Found in a place where such a writing was likely to be kept.

Many states have similar rules, but may limit the application of the doctrine to specific kinds of documents such as dispositive instruments (primarily conveyances, deeds, and wills), and may require the documents to be even older.

By admitting an ancient document into evidence, it is presumed only that the document is what it purports to be, but there are no presumptions about the truth of the document’s contents. A jury can still decide that the author of the document was lying or mistaken when the author wrote it.

So, if you come across a will that is “ancient,” consult with your attorney to determine whether it can be admitted to probate.