Delaware's Requirements for a Will
Delaware's Requirements for a Will
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Delaware's Requirements for a Will

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Summary of Delaware's Will Requirements:

Minimum Age to Make a Will 18
Written Document Required Yes
Nuncupative Wills (Oral) No
Holographic Wills (Hand-Written, Unwitnessed) No
Number of Witnesses Required 2
Self-Proving Affidavit Allowed
Statutory Form for Self-Proving Affidavit Yes

 

 

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Statutes Governing Delaware's Will Requirements:

 

Who may make a will

Any person of the age of 18 years, or upwards, of sound and disposing mind and memory, may make a will of real and personal estate. No person under the age of 18 years shall be capable of making a will either of real or personal estate.

Delaware Requirements for a Will - Code, Title 12, Chapter 2, § 201

 

Requisites and execution of will

(a) Every will, whether of personal or real estate, must be:

(1) In writing and 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; and

(2) Subject to § 1306 of this title, attested and subscribed in testator's presence by 2 or more credible witnesses.

(b) Any will not complying with subsection (a) of this section shall be void.

Delaware Requirements for a Will - Code, Title 12, Chapter 2, § 202

 

Witnesses; persons competent

(a) Any person generally competent to be a witness may act as a witness to a will.

(b) A will or any provision thereof is not invalid because the will is signed by an interested person.

Delaware Requirements for a Will - Code, Title 12, Chapter 2, § 203

 

Production of will; liability

(a) Any person, having the custody or possession of any instrument of writing purporting to be a last will and testament and intended to take effect upon the death of the testator therein named, shall produce and deliver the same to the Register of Wills for the county in which the person resides, within 10 days from the time the person receives information of the death of the testator.

(b) Any person who wilfully fails to deliver a will is liable to any person aggrieved for the damages which may be sustained by the failure. Also, any person who wilfully fails to deliver a will after being ordered by the Court of Chancery in a proceeding brought for the purpose of compelling delivery is subject to penalty for civil contempt of Court.

Delaware Requirements for a Will - Code, Title 12, Chapter 13, § 1301

 

Proving will

(a) A will shall be proved before the Register of Wills of the county in which the testator was domiciled at the time of death. If the testator was not domiciled in this State, it may be proved before the Register of any county in this State wherein there are any goods or chattels, rights or credits, or lands or tenements of the deceased.

(b) To be effective to prove a transfer of any property or to nominate an executor, a will must be declared to be valid by admission to probate.

Delaware Requirements for a Will - Code, Title 12, Chapter 13, § 1302

 

Notice and subpoena to persons interested

Proof of a will may be taken without notice to persons interested, unless such a person requests it by petition filed with the Court of Chancery. Upon receiving such petition, the Court shall, and in any case it may, appoint a time for taking the proof, and issue subpoena, requiring any person to be present at the taking of such proof. In respect to persons not within the State it may order such service or publication of notice as it deems proper.

Delaware Requirements for a Will - Code, Title 12, Chapter 13, § 1303

 

Unavailability of witnesses

(a) In case any attesting and subscribing witness to a will, at the time the will is presented for probate, is dead, is serving in the armed forces of the United States or is a merchant sailor, or is mentally or physically incapable of testifying or is not within the State, or is otherwise unavailable, proof of the signature of such witness shall be sufficient. Such proof shall be the testimony in person or by deposition of a credible disinterested person that the signature of the witness on the will is in the handwriting of the person whose signature it purports to be, or other sufficient proof of such handwriting.

(b) If a will cannot be proven because the signature of 1 or more of the attesting and subscribing witnesses to it cannot be proven, then proof of the signature of the testator shall be sufficient. Where the signature of 1 witness can be proven, the proof of the signature of the testator shall be the testimony in person or by deposition of a credible disinterested person that the signature of the testator on the will is in the handwriting of the person whose will it purports to be, or other sufficient proof of such handwriting. Where none of the signatures of the witnesses can be proven, the proof of the signature of the testator shall be the testimony in person or by deposition of 2 credible disinterested persons that the signature of the testator on the will is in the handwriting of the person whose will it purports to be, or other sufficient proof of such handwriting.

(c) The foregoing provisions of this section shall not preclude the Register of Wills from requiring, in addition, the testimony in person or by deposition of any subscribing witness, or proof of such other pertinent facts and circumstances as the Register deems necessary to admit the will to probate.

Delaware Requirements for a Will - Code, Title 12, Chapter 13, § 1304

 

Self-proved will

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 the laws of this State, and evidenced by the officer's certificate, under official seal, attached or annexed to the will in form and content substantially as follows:

STATE OF ______________

COUNTY OF _____________

Before me, the subscriber, on this day personally appeared, .............. and .......... known to me to be the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument and, all of these persons being by me first duly sworn ........... the testator, declared to me and to the witnesses in my presence that the instrument is the testator's last will and that had willingly signed or directed another to sign for the testator, and that the testator executed it as a free and voluntary act for the purposes therein expressed; and each of the witnesses stated to me, in the presence and hearing of the testator, that the witness signed the will as witness and that to the best of the witness' knowledge the testator was eighteen years of age or over, of sound mind and under no constraint or undue influence.

.......................................................................
Testator

.......................................................................
Witness

.......................................................................
Witness

Subscribed, sworn and acknowledged before me by ...... , the testator,

subscribed and sworn before me by ........ and ............ witnesses,

this....... . day of ............. , A.D., .............

(SEAL)

(SIGNED) ...............................................................
(OFFICIAL CAPACITY OF OFFICER)

Delaware Requirements for a Will - Code, Title 12, Chapter 13, § 1305

 

Choice of law as to execution of wills

A written will signed by the testator, or by some person subscribing the testator's name in the testator's presence and at the testator's express direction, is valid if executed in compliance with § 202 of this title or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode or is a national.

Delaware Requirements for a Will - Code, Title 12, Chapter 13, § 1306

 

[Reference - Delaware Requirements for a Will]

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