A Self-Proving Affidavit is a sworn statement attached to a Will that makes the Will a “Self-Proved Will,” where the execution of the Will is proven.
In order for the execution of a Will to be valid in Massachusetts, it must be signed by the testator in the presence of, or acknowledged by the testator in the presence of two disinterested witnesses, and then signed by those witnesses. (MUPC S. 2-502)
A Self-Proving Affidavit is a document, usually one page or less, which is simply a statement signed by the testator and witnesses affirming that the testator and witnesses in fact signed the Will in each other’s presence, and that to the best knowledge of the witnesses, the testator is at least 18 years old, of sound mind, and signing the document voluntarily without any undue influence. While the Will itself does not need to be signed before a Notary Public, it is always a good practice to do so. The Self-Proving Affidavit, however, does need to be executed before a Notary Public in order to be considered valid. (MUPC S. 2-504)
A Self-Proving Affidavit or a Self-Proved Will can prevent the Executor from spending time and money to locate the witnesses. Since witnesses can move, die, become incompetent, or remain unfound, it makes sense to have the Affidavit signed at the same the Will is executed.
In one estate I probated, the Will had a Self-Proving Affidavit attached to it, but no one had signed it. (The testator had obtained the Will online and did not seek the advice of an estate planning attorney prior to executing it.) Fortunately, the witnesses were still alive and competent, and had not moved in the years since they witnessed the Will. The Court required that one of them physically appear at Court and sign a sworn statement before a Court officer. This statement had essentially the same language as the original unsigned Self-Proving Affidavit that had accompanied the Will.
While the matter of proving the Will in this particular case was resolved, the witness had to take a half-day off from work to attend Court, wait in long lines, and pay for parking. The additional time and expense involved could have all been easily avoided if the Self-Proving Affidavit had just been signed at the same time as the Will. The Self-Proving Affidavit is a good example of Benjamin Franklin’s saying that an ounce of prevention is worth a pound of cure.
