The Iowa Court of Appeals recently considered the issue of witness credibility in a will contest. On September 12, 2018, the Court of Appeals found that despite a witness to the will not remembering the details of the will signing, she possessed the requisite memory overall to authenticate the will.
In In the Matter of the Estate of Thomas James Klein, a father had intentionally left only $10,000 to his son and daughter in his 2001 will. Klein died in 2016 and the will was admitted to probate in November 2017. The testator’s brother was appointed executor. Believing that all witnesses to the will’s execution were deceased, the brother followed Iowa Code section 633.297 to establish that he recognized the signatures in the will. The two children filed an action for the will to be set aside, arguing that proof of execution was not established. The parties then learned that one witness to the will signing was still alive.
Within two weeks, the witness had signed an affidavit claiming that she knew the testator, she was present when he signed the will, and she had signed the will in front of the other witness. The next month, the witness signed an affidavit prepared by the siblings’ attorney stating that she recognized the signatures on the will but did not specifically recall the circumstances regarding the will signing.
After both parties deposed the witness, she testified that she was present at the signing and recognized the signatures. The lower court then granted the brother’s motion for the will to be admitted to probate. The siblings appealed.
One of the preliminary steps in the probate process is proving the execution of a will. Wills can either be self-proven, proven through testimony or deposition of the witnesses to the will, or proven through the testimony of a credible disinterested witness if the witnesses who witnessed the signing of the will are deceased. Iowa Code § 633.279, 633.297 (2018).
The Court of Appeals found that the witness’ first affidavit did include many details including who was present and the events that occurred. While the witness did admit in her second affidavit that she did not recall the specific details of the will signing, the Court of Appeals found there was sufficient evidence to find that the witness was credible. The trial court’s decision was affirmed and the will was admitted to probate.
While a self-proving affidavit is not required to have a valid will, it makes the probate process much simpler and more streamlined. Many witnesses to a will’s execution will move or pass away before the will is admitted to probate after the testator’s death. To avoid this problem, all attorneys should ensure that the will is self-proving by having the witnesses swear in an affidavit before a notary regarding the details of the will execution. A template is provided in Iowa Code § 633.279.
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