Presumption For the Validity of a Properly Executed Will
40 A.L.R.2d 1223
§ 1. Scope
It is a relatively well-established principle of the law of wills that when it is shown that a will has been attested, then, regardless of whether the attestation clause is complete or missing in part or in whole, a presumption arises that the will was duly executed, that is, that it was executed with the formalities required by law.1 In this annotation it is sought to examine this presumption2 of due execution3 with a view to determining its nature, its effect, and its weight as against opposing or inconsistent evidence of various kinds.4
§ 2. Summary
A majority of the courts, it appears, have viewed the presumption of due execution which arises from proof of attestation of a will to be a presumption "of fact," which remains operative and may be accorded evidentiary weight notwithstanding the introduction of contrary evidence,5 rather than as a presumption "of law" which disappears when opposed by other evidence.6
This conflict in authority seems to be largely a matter of academic interest, since the courts, in ruling upon the operative effect of the presumption have, regardless of the particular legal label which they have placed upon it, reached the same conclusions. Thus it is held that by virtue of the presumption the burden of going forward with the evidence shifts from the proponent of the will whose execution is at issue to the contestants.7
The presumption is rebuttable,8 but it is established that, to overcome the presumption, the contestant must present "clear and satisfactory" proof of lack of due execution.9
Absent evidence to the contrary, the presumption of due execution will be sufficient to establish that fact.10 And it will be similarly sufficient notwithstanding that the persons who attested the will are unable to recall that the formalities for due execution of a will were complied with.11
In addition, the courts have recognized that the presumption is not necessarily overcome by contrary testimony of the persons who subscribed the will; in this situation the view is taken that the witness' testimony, being inconsistent with the facts which he has previously attested, is to be examined carefully to assure that he is not testifying fraudulently.12
Presumption for Invalid Attestation Clause
76 A.L.R. 617
I. Complete attestation clause
It is a well-established rule that a complete attestation clause reciting an observance of all statutory requirements raises a presumption of the due execution of a will if there is no contest as to the genuineness of the signatures of the witnesses, or that of the testator, or after these signatures are proved to be genuine.
II. Incomplete or defective clause
Although an attestation clause is incomplete or defective, it has been held to raise a presumption of due execution.
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