Establishing the Validity of a Will

The first step in probating an estate is to determine whether or not a decedent has left a valid will. There are two types of wills that are recognized as valid under Mississippi law: holographic wills and attested wills.

Holographic Will. A holographic will is a will that is written entirely in the testator's handwriting. Although holographic wills are not required to comply with the testamentary formalities applicable to attested wills, discussed below, they are no less valid than attested wills. However, holographic will can cause probate difficulties, usually because they are drafted by non-lawyers, are unclear, and may not effectively dispose of all of the decedent's property. Holographic wills may be signed by witnesses, but this is not a requirement for validity under Mississippi law.

The requirement that a holographic will be wholly in the writing of the testator is not as strict as it might first appear. Under the common law "surplusage rule," words that are not in the handwriting of the testator will not invalidate the will if disregarding them would not alter the meaning of the will. Printed captions or titles and signatures of witnesses are examples of items that may be permissible on a holographic will even though not in the testator's handwriting. To prove a holographic will, the executor must demonstrate that it is entirely in the decedent's handwriting and that it is signed at the bottom (subscribed). Proof that the testator had testamentary capacity and that the will is wholly in his handwriting is usually in the form of affidavits of disinterested persons.

Attested Wills. Attested wills are those that have been witnessed and "attested to" by witnesses. If the will is not a holographic will, it must be attested in order to be valid. The following requirements must be satisfied to have a valid attested will: (1) the testator must sign the will or someone else must sign it for the testator at his or her direction; (2) the testator must acknowledge his signature to the witnesses and publish the will to the witnesses when they sign the will (if he did not sign it in their presence); (3) the testator must ask the witnesses to sign the will; (4) the witnesses must sign the will in the testator's presence; and (5) the witnesses must be credible. Although Mississippi law only requires the witnesses to sign the will, it is good practice to include an attestation clause stating that the instrument describing setting forth the satisfaction of these requirements.

An attested will may be admitted to probate upon the affidavit of one or more of the witnesses to the will. The affidavit should generally state that the will was validly executed and that the testator was of sound and disposing mind. Mississippi law allows the affidavit to be signed at the time the will is executed, in which case it is known as a "self-proving affidavit." If a self-proving affidavit is not attached, the Mississippi estate attorney may obtain an affidavit from one or both of the witnesses after the testator's death.

If the subscribing witnesses are unavailable to sign affidavits, there are two options available to the executor. First, the executor can introduce independent testimony of people who have knowledge about the testator's capacity and that the will was duly executed. Since execution of a will is usually not a public matter, this may difficult. Second, the executor could introduce evidence that the signatures of the testator and the two witnesses are authentic. Evidence may be in the form of any method permitted under Mississippi law for proving signatures. This is usually done by finding one or more disinterested persons who can testify in an affidavit as to the authenticity of the signatures and introducing evidence (usually a sworn statement) that, after due diligence and inquiry, the original subscribing witnesses could not be located.

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