To make a valid attested written will in North Carolina the will must be:
- In writing
- Signed by the testator
- Witnessed by at least two competent witnesses
What Is an Attested Written Will In North Carolina?
N.C. Gen. Stat. § 31-3.3 defines and sets forth the requirements for making a valid attested written will in North Carolina and states:
(a) An attested written will is a written will signed by the testator and attested by at least two competent witnesses as provided by this section.
(b) The testator must, with intent to sign the will, do so by actually signing the will or by having someone else in the testator’s presence and at the testator’s direction sign the testator’s name thereon.
(c) The testator must signify to the attesting witnesses that the instrument is the testator’s instrument by signing it in their presence or by acknowledging to them the testator’s signature previously affixed thereto, either of which may be done before the attesting witnesses separately.
(d) The attesting witnesses must sign the will in the presence of the testator but need not sign in the presence of each other.
North Carolina also recognizes holographic wills (wills written entirely in the testator’s handwriting) and noncupative wills (oral wills made during last sickness), which we discuss here.
A Valid Attested Written Will Must Be Signed By The Testator Or At The Testator’s Direction
To make a valid attested written will under North Carolina law, the testator must sign the will OR have someone else, in the presence and at the direction of the testator, sign the testator’s name on the will.
Under most circumstances it is better practice if the testator signs the will himself. If the testator does not sign the will by himself, then questions more readily arise as to the testator’s capacity to make the will. Even if the reason for the testator directing another person to sign the testator’s name on the will is solely physical, a will contestant might allege that the testator was so weak that he did not have the physical OR mental capacity to execute a valid will under North Carolina law.
Competent Witnesses To a North Carolina Will
North Carolina law requires that the will be witnessed by two competent witnesses.
N.C. Gen Stat. § 31-8.1 provides that “any person competent to be a witness generally in this State may act as a witness to a will.”
The executor nominated in the will is not incompetent to serve as a witness to the will simply because they are the named executor. See N.C. Gen. Stat. § 31-9.
Testator Acknowledgment Of the Will
A North Carolina testator also must signify to the attesting witnesses that the instrument is the testator’s will.
This can be accomplished by the testator signing the will in the presence of the witness or acknowledging to the witness the testator’s signature previously affixed to the will.
Presence Requirement
North Carolina law also requires that to make a valid attested written will the attesting witnesses must sign the will in the presence of the testator. The attesting witnesses are not required to sign the will in the presence of each other.
If you want to make a will, it is a good idea to consult with a North Carolina probate lawyer to make sure that the formal requirements to make a will are met so that the will is valid.
