West Virginia: Self-Proving Affidavit for Wills Requirements

Requirements one by one

Availability and governing law

West Virginia's stored-affidavit route is § 41-5-15. It is not the common
combined form in which the testator acknowledges the will and the witnesses
swear in one ceremony. The statute instead authorizes affidavits by “any or all”
of the attesting witnesses and gives those affidavits the evidentiary value of
their courtroom testimony.

Section 41-5-14 supplies a different route after death. Once a will has been
offered for probate, an admissible witness deposition may be used, and in an
uncontested proceeding that deposition may be an affidavit. Keeping those two
routes separate matters because their timing and notice rules differ.

Who signs or swears

Under § 41-5-15, the affiants are the attesting witnesses. The testator's roles
are to request the affidavits and preserve them with the will. The statute does
not require the testator to make an acknowledgment, take an oath, or sign the
affidavit.

“Any or all” means the statute permits an affidavit from one witness, both
witnesses, or every witness if more than two attested. It does not convert a
one-witness will into a valid will; § 41-1-3 separately requires at least two
competent witnesses for a nonholographic will.

When it may be made

The heading and operative structure of § 41-5-15 make this a lifetime route:
the testator requests the affidavits and then preserves them with the will. It
does not authorize an executor or beneficiary to request that stored affidavit
after the testator's death.

After the will is offered for probate, § 41-5-14 may allow a deposition in the
form of an affidavit. In an uncontested proceeding it may be taken without
notice; a contested proceeding requires service and notice and follows the
ordinary deposition rules.

Officer, oath, and seal

Section 41-5-15 allows any officer authorized to administer oaths, “in or out of
the state.” It does not limit the officer to a West Virginia notary and does not
state a self-proof-specific seal, certificate form, or commission-expiration
line.

That silence is not permission to omit whatever the chosen officer's own law
requires for an oath. It means the will-proof statute itself does not add a
special seal or certificate requirement.

Required recitals and form

West Virginia supplies no printed affidavit form and no “substantially as
follows” block. Section 41-5-15 uses a functional test: each witness states the
facts that witness would be required to give in court to establish and prove the
will.

For an ordinary witnessed will, those facts track § 41-1-3: the will is in
writing; the testator signed or directed another person to sign in the
testator's presence; the testator signed or acknowledged the will before at
least two competent witnesses present at the same time; and the witnesses
subscribed in the presence of the testator and each other. The execution statute
expressly says no particular attestation form is necessary.

Attachment to the will

Section 41-5-15 does not say the affidavit must be written on, attached to, or
annexed to the will. Its actual commands are that the testator preserve the
affidavits “with the will” and that they be produced and offered in evidence when
the will is offered for probate.

A separate affidavit sheet therefore must remain with the will and reach the
probate proceeding with it. A detached affidavit that cannot be produced with
the offered will loses the statutory route.

Electronic, remote, and out-of-state rules

Sections 41-1-3 and 41-5-15 do not create a separate electronic-will or remote-
self-proof procedure. Section 41-1-3 states that the will must be in writing,
while § 41-5-15 speaks in terms of subscribing an affidavit and preserving it
with the will.

The statute is explicit on one cross-border point: the oath officer may be in or
out of West Virginia. It does not separately say that an affidavit receiving
self-proof status under another state's law automatically receives the same
status in West Virginia.

Probate effect and exceptions

When preserved, produced, and offered as § 41-5-15 requires, the affidavit is
admissible and has “the same probative value” as if its witness appeared before
the court or clerk and testified to those facts. That is a testimony substitute,
not a conclusive judgment that the will is valid.

The exception is categorical: the stored affidavits “shall not be admissible”
when there is a contest over the will. A contest does not merely reduce their
weight; it removes this statutory affidavit evidence from the case.

If there is no affidavit

A missing affidavit does not add a will-execution defect. Validity is governed
separately by § 41-1-3, while § 41-5-15 says the witnesses “may” make affidavits.
Without stored affidavits, the proponent uses witness testimony before the court
or clerk or the deposition procedure in § 41-5-14.

For an uncontested matter, § 41-5-14 permits the deposition after the will is
offered, without notice, and says it may be in affidavit form. That probate-stage
affidavit is an alternate proof device; it is not the lifetime affidavit the
testator preserves under § 41-5-15.

What trips people up

• The testator does not join the statutory affidavit. A combined form that
  swears the testator and both witnesses may contain extra language, but the
  § 41-5-15 affiants are the attesting witnesses.
• The pre-death and probate-stage affidavits are different tools. Section
  41-5-15 is requested and preserved by the living testator. Section 41-5-14 is
  a deposition route used after the will has been offered for probate.
• A contest switches off the stored affidavit. The final proviso of
  § 41-5-15 makes it inadmissible in a contested case.

Common questions

Does the affidavit replace the two witnesses at the will signing?

No. Section 41-1-3 separately requires at least two competent witnesses for a
nonholographic will. Section 41-5-15 changes how their evidence may be presented
later; it does not change how the will must be executed.

Can a handwritten will use this affidavit route?

Only if it actually has attesting witnesses who can make the affidavits.
Section 41-1-3 exempts a will wholly in the testator's handwriting from its
witness clause, while § 41-5-15 authorizes affidavits only from “attesting
witnesses.” A witness-free holographic will therefore has no § 41-5-15 affiant.

Statutes and sources

• W. Va. Code § 41-1-3 — writing, signature, and two-witness execution rules,
  including the holographic-will exception.
  https://code.wvlegislature.gov/41-1-3/
  (accessed 2026-08-01)
• W. Va. Code § 41-5-14 — probate-stage depositions, uncontested affidavits,
  notice, and contested-case procedure.
  https://code.wvlegislature.gov/email/41-5/
  (accessed 2026-08-01)
• W. Va. Code § 41-5-15 — witness affiants, lifetime request, oath officer,
  required proof facts, preservation with the will, evidentiary effect, and
  contest exclusion.
  https://code.wvlegislature.gov/41-5-15/
  (accessed 2026-08-01)