A valid will under Delaware law must be:
- In writing;
- Signed by the testator; and,
- Witnessed and attested by two witnesses.
The requirements to make a valid will under Delaware law can be found at 12 DE Code § 202.
Who Can Make a Valid Will Under Delaware Law?
Any person 18 years of older, of “sound and disposing mind and memory” may make a valid will under Delaware law, of real and personal property.
To be of sound and disposing mind and memory, a testator must:
[a]t the time of execution, be capable of exercising thought, reflection and judgment, and must know what he or she is doing and how he or she is disposing of his or her property. The person must also possess sufficient memory and understanding to comprehend the nature and character of the act.
See In Re Estate of West, 522 A.2d 1256 (1987).
Thus, to be of sound and disposing mind and memory to make a valid will under Delaware law, the testator must know that he or she is disposing of his or her estate by will, and to whom.
A Delaware Will Must Be Signed
In addition to being in writing, a Delaware will must be signed to be valid. The will can be signed by the testator or by some person subscribing the testator’s name in the testator’s presence and by the testator’s express direction.
Therefore, if for some reason a testator is physically unable to sign the will, the testator can direct another person to subscribe the testator’s name.
A Delaware Will Must Be Properly Witnessed
To be properly witnessed under Delaware law, the testator must sign the will in front of two witnesses, and the witnesses must sign the will in front of the testator. 12 DE Code § 202.
Any person who is generally competent to be a witness may act as a witness to a Delaware will. A will or any provision thereof is not invalid because the will is signed by an interested person (a beneficiary under the will). 12 DE Code § 203.
Does a Delaware Will Have To Be Notarized To Be Valid?
No, there is no requirement under Delaware law that a will must be notarized in order to be valid. However, notarization of the will is recommended, and allows the testator to make the will self-proving. This makes the will admissible to probate after death without the need for the testimony of the attesting witnesses.
An attested will may at the time of its execution or at any subsequent date be made self-proved, by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under Delaware law. 12 DE Code § 1305 provides a form to make a will self-proving, which should be substantially followed.
Working with a Delaware probate attorney is the best way to make sure that you create a valid will and that your testamentary wishes are set forth.