What happens if a witness to a will dies?

Answer 1

This depends on the laws of the state where the will is to be probated. Some states have more stringent proof requirements than others in the event the witnesses are dead or unknown. Several points to be made here. Most states require wills to be witnessed by two people but that only one of them needs to appear to sign an affidavit that he or she witnessed the testator and the other witness sign the will. If one witness has to sign such a proof for the will to be probated, then more than likely the will will not be admitted to probate, because proper legal execution of the will cannot be made. If one witness has died but the other is available to sign the affidavit, then there should be no problem as long as that state does not require both witnesses to attest to the will's execution. In New Jersey, case law developed whereby if a will had a proper attestation clause and if it had been signed by two witnesses, then someone having knowledge of the handwriting of one witness could sign an affidavit that the signature of one witness on the will is in fact the handwriting of that witness. This makes it likely that the will was signed by that person as a witness in the manner described in the attestation clause. The attestation clause must properly describe how the will was executed or else this technique is unavailable. Modern probate laws governing execution of the will now provided for what is called a "self-proving will". To make a will self-proving, the testator and witnesses sign an affidavit attesting to the proper execution of the will at the same time that the will is executed. This affidavit is then used as the affidavit of proof that a witness to the will would have had to sign to probate the will. This eliminates the need to have one of the actual witnesses to the will at the time of probate. If a will is properly self-proving, there is no further need for the witness to be available to prove the will. This innovation was done in order to save some wills from being denied probate simply because the witnesses had died or were unavailable to prove the will.