If a will has a self-proving affidavit certificate signed by the testator and the witnesses, but no separate attestation by the witnesses, can the clerk admit the will to probate? And if not, can the witnesses come back into court later and attest the will so it can be probated?
Plain-English summary
The Iredell County Clerk of Superior Court asked a clean question about the relationship between two will statutes in force in 1978: the long-standing attestation requirement in N.C.G.S. § 31-3.3 (witnesses must sign the will after the testator and in the testator's presence) and the newer self-proving statute in N.C.G.S. § 31-11.6 (the testator and witnesses may sign a sworn affidavit before an officer authorized to administer oaths, and that affidavit then substitutes for live witness testimony at probate).
The clerk's fact pattern: a will arrived with a self-proving certificate, signed by the testator and witnesses before an officer, but no separate attestation by the witnesses. Could the certificate itself count as the attestation? And if not, could the witnesses come back later and fix the problem by attesting the will in court?
The AG answered no to both questions.
On the first question, the AG read § 31-11.6 as a probate-stage alternative for a will that had already been attested. The certificate did the work of replacing courtroom witness testimony at probate, not the work of replacing the attestation ceremony itself. The whole structure of the statutory certificate language assumes attestation has already occurred, because the testator and witnesses are declaring under oath that they signed and witnessed the will. The 1978 (Supp.) amendment to Uniform Probate Code § 2-504, which expressly converted the UPC version into a simultaneous-execution-and-attestation method, confirmed by contrast that the original UPC text (and the parallel original N.C.G.S. § 31-11.6) did not authorize that shortcut.
On the second question, the AG read § 31-3.3 as requiring attestation to happen after the testator's signature and in the testator's presence. Witnesses appearing in court after the fact could not satisfy either requirement. The AG cited In re Thomas, 111 N.C. 409, 16 S.E. 226 (1892), for the rule that attestation must be made in accordance with the statutory ceremony, and noted that the same problem would extend further if the testator had also failed to sign the will in accordance with § 31-3.3.
Currency note
This opinion was issued in 1978. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
N.C.G.S. § 31-11.6 has been substantially restructured since 1978. The General Assembly later amended the self-proving statute, and the relationship between attestation and self-proving affidavits in current North Carolina probate practice should be checked against the current statutory text and recent appellate decisions. The current rule in many states (and in current versions of the Uniform Probate Code) is the simultaneous-execution form the AG identified as a 1978 Supplement amendment to UPC § 2-504. Whether North Carolina has adopted a similar simultaneous-execution rule, and how clerks of superior court currently handle probate of self-proved wills with attestation defects, is a question of present law and should be researched against current authority before relying on the 1978 answer.
Historical context: what the AG concluded
The opinion turns on a careful reading of two statutes that look like they overlap but do not.
N.C.G.S. § 31-3.3 is the basic attestation requirement. Two competent witnesses must sign the will after the testator signs and in the testator's presence (or attest the testator's acknowledgment of an earlier signature). The witnesses' signatures are the act of attestation. The act is procedural and time-bound: it happens at the execution ceremony and cannot happen later.
N.C.G.S. § 31-11.6 (as enacted in 1977) provided a separate procedure: the testator and the attesting witnesses could appear before an officer authorized to administer oaths and acknowledge under oath that they had executed the will in conformity with § 31-3.3. The officer then issued a certificate, attached to the will, that became evidence at probate substituting for live witness testimony. The certificate could be added at execution or at any time thereafter.
The clerk's question was whether the § 31-11.6 certificate, executed at the time of will signing, could itself satisfy the § 31-3.3 attestation requirement. The AG said no. The certificate's text presupposes that attestation has already happened (the witnesses are declaring under oath that they signed in the testator's presence), so the certificate is logically downstream of attestation. The AG also drew on the contemporaneous Uniform Probate Code experience: the 1977 version of UPC § 2-504 read substantially like N.C.G.S. § 31-11.6 and had the same limitation, which is why the 1978 UPC supplement added a new subsection (a) that expressly authorized simultaneous execution-attestation-and-self-proving before a notary. The UPC drafters' explanation, quoted in the opinion, confirmed that the original text "authorized only the addition to an already signed and witnessed will, of an acknowledgment of the testator and affidavits of the witnesses thereby requiring testator and witnesses to sign twice even though the entire execution ceremony occurred in the presence of a notary or other official." North Carolina's § 31-11.6 had the same structural feature. The certificate did not replace attestation; it only replaced the need for the witnesses to come into court to prove attestation.
On the second question, the AG was equally clean. Witnesses cannot come into court later and attest. Attestation is a contemporaneous act at the execution ceremony. The witnesses must sign in the presence of the testator and after the testator. Both conditions are physically impossible to satisfy after the will has been signed and removed from the testator's presence. In re Thomas, 111 N.C. 409, 16 S.E. 226 (1892), supplied the authority that attestation must comply with the statutory ceremony. The AG also noted that the problem deepened if the testator had not signed the will in accordance with § 31-3.3 at the execution ceremony, since the testator's signature is the predicate the witnesses' attestation depends on.
For a clerk in 1978, the operational rule was straightforward: a will arriving with only the self-proving certificate, no separate witness attestation, could not be admitted to probate. The defect was not curable by post-hoc witness appearance in court.
Common questions
What is a self-proving will?
A self-proving will is a will accompanied by a sworn certificate from the testator and witnesses, executed before a notary or other officer authorized to administer oaths, attesting that the will was executed in conformity with statutory requirements. The certificate is then attached to the will and substitutes for live witness testimony when the will is offered for probate. The point of self-proving is to spare witnesses (some of whom may have moved or died by the time of probate) from having to appear in court.
What was the technical defect the clerk was asking about?
The witnesses had signed the self-proving affidavit certificate but had not separately signed the will itself as attesting witnesses. The clerk wanted to know whether the affidavit signature could double as the attestation signature.
Why did the AG say the affidavit cannot substitute for attestation?
Because the affidavit's text only makes sense if attestation has already happened. The witnesses are swearing that they signed the will as witnesses. If they never separately signed it as witnesses, the sworn statement is false on its face. The 1977 version of N.C.G.S. § 31-11.6 (like the parallel 1977 UPC § 2-504) was designed only to evidence prior attestation, not to replace it.
Could the witnesses go back to the testator and re-execute the will properly?
If the testator was still alive and competent, yes. The will could be re-executed in full compliance with § 31-3.3. The opinion is about a will that arrived at the clerk's office with the defect, presumably from a testator who was no longer available to redo the ceremony.
Could the witnesses just sign the will now, in court, attesting after the fact?
No. The AG read § 31-3.3 as requiring attestation to be contemporaneous with the execution ceremony and to happen in the testator's presence. Neither condition can be satisfied after the fact. In re Thomas (1892) was cited for the proposition that attestation outside the statutory ceremony does not count.
What happens to a will with this defect?
It is not admitted to probate. The estate would then pass under any earlier valid will (if one exists) or by intestate succession.
How is this different from the modern Uniform Probate Code approach?
The 1978 supplement to UPC § 2-504 added a new subsection (a) authorizing simultaneous execution, attestation, and self-proving before an officer. Under that approach, the witnesses' signature on the affidavit can serve as both the attestation and the self-proving acknowledgment, executed together in one ceremony. The 1977 North Carolina statute (and the original 1977 UPC text) did not contain that simultaneous-execution authorization.
Background and statutory framework
The opinion sits at the intersection of formal will-execution law and the procedural mechanics of probate.
The attestation requirement. N.C.G.S. § 31-3.3 (the attested written will statute) required two competent witnesses to sign the will after the testator signed and in the testator's presence. Attestation is a formal act of authentication: the witnesses are confirming that the testator personally signed the document as the testator's will. The requirement protects against forgery, fraud, and undue influence at the execution ceremony.
The self-proving statute. N.C.G.S. § 31-11.6 (Supp. 1977) added a procedural shortcut for probate. The testator and witnesses could go before an officer (a notary, a magistrate, etc.) and acknowledge under oath that they had executed the will in compliance with § 31-3.3. The officer's certificate, attached to the will, then evidenced the execution at probate without needing the witnesses to appear and testify. The certificate could be added at the time of execution or any time after.
The Uniform Probate Code comparison. The opinion's discussion of UPC § 2-504 is illuminating. The 1977 UPC version read substantially like N.C.G.S. § 31-11.6 and shared the same structural limitation: the affidavit evidenced a prior attestation, but did not authorize simultaneous execution-and-attestation in one ceremony. The 1978 UPC supplement added a new subsection (a) that did authorize simultaneous execution. The drafters' comment expressly identified the prior text as requiring "testator and witnesses to sign twice even though the entire execution ceremony occurred in the presence of a notary or other official."
The case law. In re Thomas, 111 N.C. 409, 16 S.E. 226 (1892), is cited as the long-standing North Carolina authority that attestation must comply with the statutory ceremony. The Florida case In Re Estate of Kavcic, 341 So.2d 278 (Fla. App. 1977), is cited for a comparable interpretive holding in another state.
Citations
- N.C.G.S. § 31-11.6 (Supp. 1977) (self-proving certificate procedure)
- N.C.G.S. § 31-3.3 (attestation requirements for written wills)
- Uniform Probate Code § 2-504 (1977 and Supp. 1978)
- In re Thomas, 111 N.C. 409, 16 S.E. 226 (1892) (attestation must comply with statutory ceremony)
- In Re Estate of Kavcic, 341 So.2d 278 (Fla. App. 1977) (comparable interpretation in another jurisdiction)
Source
Original opinion text
Requested By: Honorable Carl G. Smith, Clerk of Superior Court, Iredell County
Questions:
(1) May a will be admitted to probate where it includes a certificate executed in the form prescribed by N.C.G.S. § 31-11.6 (relating to self-proved wills), but where no separate attestation was made?
(2) If the answer to question (1) is no, may the witnesses who signed the certificate later go before the court and attest the will and thereby have the will admitted to probate?
Conclusions:
(1) No.
(2) No.
N.C.G.S. § 31-11.6 (Supp. 1977) provides that:
An attested written will executed as provided by G.S. 31-3.3 may at the time of its execution or at any subsequent date be made self-proved by the acknowledgement thereof by the testator and the affidavits of the attesting witnesses, each made before an officer authorized to administer oaths under the laws of this state, and evidenced by the officer's certificate, under official seal, attached or annexed to the will in form and content substantially as follows. . . .
The certificate is set out in the statute. It states, in part, that the testator declared that he had signed the will and executed it in the presence of the witnesses or acknowledged his signature to them. The witnesses make a similar declaration. Space is provided for the signatures of the testator, witnesses and acknowledging officer. The statute then provides that "The sworn statement of any such witnesses taken as herein provided shall be accepted by the court as if it had been taken before such court."
The purpose of this provision is to allow for the ante-mortem proof of a written attested will. It simply provides an alternative method of probate to the others set out in N.C. G.S. 31-11.6 does not in any respect displace of amend the requirements of N.C. G.S. 31-3.3 governing attestation of wills. See, e.g., In Re Estate of Kavcic, 341 So.2d 278 (Fla. App. 1977). The whole thrust of the statute contemplates a will that has already been attested by the testator and witnesses. This is self-evident from the language of the certificate which requires a declaration by the testator and witnesses that they had signed the will.
It is interesting to note that Section 2-504 of the Uniform Probate Code (U.L.A.) § 2-504 (1977) read substantially like N.C. G.S. 31-11.6. However, Section 2-504 was amended (Supp. 1978) to read, in part,
(a) Any will may be simultaneously executed, attested, and made self proved by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths. . . .
The comment to this amendment states that:
(The) original text (of this section) authorized only the addition to an already signed and witnessed will, of an acknowledgment of the testator and affidavits of the witnesses thereby requiring testator and witnesses to sign twice even though the entire execution ceremony occurred in the presence of a notary or other official.
If the will was not properly attested, the witnesses who signed the certificate may not later go before the court and attest the will and thereby have the will admitted to probate. Attestation must be made in accordance with N.C. G.S. 31-3.3 which requires that the witnesses sign after the testator and in his presence. In re Thomas, 111 N.C. 409, 16 S.E. 226 (1892).
This could obviously not be done if the testator had also failed to sign the will in accordance with N.C. G.S. 31-3.3.
Rufus L. Edmisten
Attorney General
Lucien Capone, III
Associate Attorney General