Also known as: due executions · proper execution · valid execution
Written by attorneys — see sources below.
Compliance with the formal requirements prescribed by statute for the valid execution of a will.
Denise Donovan offered a will for probate after her uncle's death. She presented the signed document and an attestation clause from two witnesses who were available to testify. The court accepted the clause as raising a rebuttable presumption of due execution under the applicable statute, shifting the burden to any contestant to prove lack of capacity or undue influence.
Danielle Dixon executed an international will before an authorized person in State A. The authorized person attached and signed the required certificate confirming that all statutory execution steps had been followed and delivered a copy to Danielle. The certificate established formal validity of the will under the governing provisions.
Darius Dixon's relatives conspired to prevent him from executing a new will that would have benefited his intended beneficiaries. The court recognized that the conspiracy frustrated the testator's intent even though the existing will satisfied formal execution requirements. The disappointed beneficiaries recovered on a constructive trust theory without invalidating the executed instrument itself.
Mary Sheldon Lyon executed a will in 1943 that left almost her entire estate to defendant Father Divine, leader of a religious cult, two corporate defendants connected with the cult, and individual defendant Patience Budd, an active follower of Father Divine. Plaintiffs, first cousins of the decedent but not her distributees, allege that after making this will the decedent on several occasions expressed a desire and determination to revoke it and to execute a new will under which plaintiffs would receive a substantial portion of the estate. Shortly prior to her death the decedent had attorneys draft a new will naming plaintiffs as legatees for legacies totaling approximately $350,000. By means of false representations, undue influence, and physical force, defendants prevented the decedent from executing that new will. Shortly before her death in October 1946, the decedent again expressed her determination to execute the proposed new will favoring plaintiffs, whereupon defendants conspired to kill and did kill her by means of a surgical operation performed by a doctor engaged without the consent or knowledge of any relatives. After the decedent’s death the 1943 will was contested by distributees and probated under a compromise agreement to which plaintiffs were not parties and under which the defendants received a large sum from the estate. Plaintiffs filed an amended complaint seeking a declaration that defendants hold the property as constructive trustees for plaintiffs. The complaint was dismissed for insufficiency on a motion under rule 106 of the Rules of Civil Practice. The Appellate Division affirmed the dismissal, and the Court of Appeals took the case for review.
View caseDiane Dawson's attorney prepared her will with a mistaken provision but the testator signed the document in the presence of two witnesses who attested it. The court permitted extrinsic evidence to show that the testator had executed the will in reliance on the attorney's erroneous advice. The will was admitted to probate because the formal execution steps had been satisfied.
Alicia Erickson, the daughter of decedent Ronald K. Erickson, appealed from a trial court judgment that affirmed the Probate Court’s decree admitting her father’s will to probate in favor of defendant Dorothy Erickson, the executrix of the estate. On September 1, 1988, the decedent executed a will while unmarried and the father of three daughters. Two days later, on September 3, 1988, he married the defendant. He died on February 22, 1996. The will named the defendant as executrix and guardian of the decedent’s daughters and included among its beneficiaries the defendant’s four children—Thomas Mehring, Christopher Mehring, Maureen Mehring, and Kathleen Mehring—whose identities the trial court admitted into evidence. The plaintiff filed a motion in limine before trial seeking to limit proof to the will, the marriage certificate, and the death certificate. The defendant responded with a detailed offer of proof concerning the decedent’s intent and his communications with his attorney. The trial court granted the motion in limine as to most extrinsic evidence of intent but denied it regarding the beneficiaries’ identities. It then concluded after a de novo hearing that the will’s provisions and the two-day interval between execution and marriage supplied clear and convincing evidence that the instrument accounted for the contingency of marriage. The plaintiff appealed to the Appellate Court, which transferred the case to the Supreme Court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). The defendant cross-appealed the evidentiary ruling excluding the balance of her proffered proof.
View caseThe proponent of the will must establish prima facie proof of due execution in all cases. If the proponent also files the petition, the proponent must additionally show prima facie proof of death and venue. The contestant then bears the burden of proving lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation.
Supporting sources
A signature on a self-proving affidavit attached to the will counts as a signature on the will itself when necessary to prove due execution. An attestation clause signed by the witnesses also raises a rebuttable presumption that the recited events occurred.
Supporting sources
The court first determines whether the later will is entitled to probate. Only if the later will fails probate does the court then consider whether the earlier will qualifies for probate.
Supporting sources
Yes. Due execution does not require that the testator's or witnesses' signatures appear on the same page as the dispositive provisions. Writings on envelopes or other media may be included when the physical connection supports an inference that all pages were present and intended as part of the will at execution.
Supporting sources
…defeated by any argument that to give plaintiffs judgment would be to annul those provisions of the Statute of Wills requiring due execution by the testator. Such a contention, if valid, would have required the dismissal in a number of the suits herein cited. The answer is in Ahrens v. Jones (169 N. Y. 555, 561, supra ):…