A self-proving will is a last will and testament that is acknowledged by the testator and two witnesses simultaneously before a notary public authorized to take oaths in the State of Michigan. The benefit of a self-proving will is that there is no need to locate the witnesses later for the admission of the will to the probate court since their signatures are acknowledged under oath. This is a useful tool that can help avoid problems regarding your final wishes in the future. This blog article will explain the basics of how your last will and testament can be a “self-proving” will.
WHAT IS REQUIRED TO MAKE A SELF-PROVING WILL?
Pursuant to MCL 700.2504(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, in substantially the following form:”
I, ________________________, the testator, sign my name to this document on __________, _____. I have taken an oath, administered by the officer whose signature and seal appear on this document, swearing that the statements in this document are true. I declare to that officer that this document is my will; that I sign it willingly or willingly direct another to sign for me; that I execute it as my voluntary act for the purposes expressed in this will; that I am 18 years of age or older and under no constraint or undue influence; and that I have sufficient mental capacity to make this will.
_________________________________ (Signature) Testator
We, ________________________ and ________________________, the witnesses, sign our names to this document and have taken an oath, administered by the officer whose signature and seal appear on this document, to swear that all of the following statements are true: the individual signing this document as the testator executes the document as his or her will, signs it willingly or willingly directs another to sign for him or her, and executes it as his or her voluntary act for the purposes expressed in this will; each of us, in the testator’s presence, signs this will as witness to the testator’s signing; and, to the best of our knowledge, the testator is 18 years of age or older, is under no constraint or undue influence, and has sufficient mental capacity to make this will.
_________________________________ (Signature) Witness
_________________________________ (Signature) Witness
This would be followed by the “jurat” (the written verification upon oath or affirmation) which indicates the last will and testament was “[s]worn to and signed in my presence by ______________, the testator, and sworn to and signed in my presence by ___________________ and __________________, witnesses, on _____________(date).” It would then be signed and sealed by the notary public or some other officer authorized in the State of Michigan to take oaths.
AN ATTESTED WILL MAY BE MADE SELF-PROVING AT ANY TIME AFTER ITS EXECUTION
Pursuant to MCL 700.2504(2), “[a]n 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 officer authorized to administer oaths under the laws of the state in which the acknowledgment occurs and evidenced by the officer’s certificate, under the official seal, attached or annexed to the will in substantially the following form:”
We, ___________________, ___________________, and ___________________, the testator and the witnesses, respectively, whose names are signed to the attached will, sign this document and have taken an oath, administered by the officer whose signature and seal appear on this document, to swear that all of the following statements are true: the individual signing this document as the will’s testator executed the will as his or her will, signed it willingly or willingly directed another to sign for him or her, and executed it as his or her voluntary act for the purposes expressed in the will; each witness, in the testator’s presence, signed the will as witness to the testator’s signing; and, to the best of the witnesses’ knowledge, the testator, at the time of the will’s execution, was 18 years of age or older, was under no constraint or undue influence, and had sufficient mental capacity to make this will.
_________________________________ (Signature) Testator
_________________________________ (Signature) Witness
_________________________________ (Signature) Witness
This would be followed by the jurat (the written verification upon oath or affirmation) which indicates that this document was “[s]worn to and signed in my presence by ______________, the testator, and sworn to and signed in my presence by ___________________ and __________________, witnesses, on _____________(date).” It would then be signed and sealed by the notary public or some other officer authorized in the State of Michigan to take oaths.
A CODICIL AND THE ORIGINAL WILL CAN BE MADE SELF-PROVING AT THE SAME TIME
A codicil is an amendment or addition to the original will made at a later date.
Pursuant to MCL 700.2504(3), “[a] codicil to a will may be simultaneously executed and attested, and both the codicil and the original will made self-proved, by acknowledgment of the codicil by the testator and by 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, in substantially the following form:”
I, _______________, the testator, sign my name to this document on __________, _____. I have taken an oath, administered by the officer whose signature and seal appear on this document, swearing that the statements in this document are true. I declare to that officer that this document is a codicil to my will; that I sign it willingly or willingly direct another to sign for me; that I execute it as my voluntary act for the purposes expressed in this codicil; and that I am 18 years of age or older, and under no constraint or undue influence; and that I have sufficient mental capacity to make this codicil.
_________________________________ (Signature) Testator
We, _______________ and _______________, the witnesses, sign our names to this document and have taken an oath, administered by the officer whose signature and seal appear on this document, to swear that all of the following statements are true: the individual signing this document as the testator executes the document as a codicil to his or her will, signs it willingly or willingly directs another to sign for him or her, and executes it as his or her voluntary act for the purposes expressed in this codicil; each of us, in the testator’s presence, signs this codicil as witness to the testator’s signing; and, to the best of our knowledge, the testator is 18 years of age or older, is under no constraint or undue influence, and has sufficient mental capacity to make this codicil.
_________________________________ (Signature) Witness
_________________________________ (Signature) Witness
This would be followed by the jurat (the written verification upon oath or affirmation) which indicates that this document was “[s]worn to and signed in my presence by ______________, the testator, and sworn to and signed in my presence by ___________________ and __________________, witnesses, on _____________(date).” It would then be signed and sealed by the notary public or some other officer authorized in the State of Michigan to take oaths.
A WRITTEN DECLARATION MADE UNDER PENALTY OF PERJURY CAN BE USED TO MAKE A SELF-PROVING WILL IN PLACE OF A SWORN STATEMENT
Pursuant to MCL 700.2504(5), “[i]nstead of the testator and witnesses each making a sworn statement before an officer authorized to administer oaths…, a will or codicil may be made self-proved by a written statement that is not a sworn statement. This statement shall state, or incorporate by reference to an attestation clause, the facts regarding the testator and the formalities observed at the signing of the will or codicil as prescribed [for self-proving wills in MCL 700.2504(1) and MCL 700.2504(3)]. The testator and witnesses shall sign the statement, which must include its execution date and must begin with substantially the following language: “I certify (or declare) under penalty for perjury under the law of the state of Michigan that…”.
WHY SHOULD YOU CONSIDER HAVING A SELF-PROVING WILL?
If a will is self-proving, it precludes the necessity for the testimony of a witness to admit a will to probate. Otherwise, if the terms of the will are contested, it is necessary for the proponent of the will to locate at least one of the witnesses that can testify the document offered to probate is, in fact, the testator’s will. However, witnesses can die or move away and it may be difficult or impossible for the proponent to locate them for some future court proceeding. If the will is self-proving, then locating any witness will be unnecessary and it will be easier to admit the will to probate.
Our office is ready and able to handle all of your estate planning needs. We can ensure that your last will and testament meets all of the legal requirements under the law so that your final wishes can be carried out in the manner that you desire. We can also make your last will and testament self-proving upon request to reduce problems regarding the admission of the document to probate in the future.
If you have further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
