§ 303 SELF-PROOF

• Jurisdiction: South Carolina
• Section: Chapter 3 Wills

§ 303 Self-proof

The SCPC introduced to South Carolina law the concept of the self-proving will.⁵² A will is self-proved when the testator and the witnesses acknowledge by oath to an officer authorized to take oaths—i.e., a notary public—that: (1) the testator (or his proxy) signed willingly, freely, and voluntarily (free of constraint and undue influence); (2) the testator was at least eighteen years old and of sound mind; and, (3) the witnesses attested in the presence and the hearing of the testator.⁵³ The self-proof may occur in one step (simultaneous with the execution, thereby serving as the self-proof of the will as well as the execution and attestation) or two steps (subsequent to the execution—i.e., in addition to the "traditional" method of execution and attestation).⁵⁴ Because the self-proving statute allows a separate (two-step) self-proof after the original execution of the will without otherwise imposing a time limit, the two step process is appropriate even for wills executed prior to the enactment of this section.⁵⁵

Section 62-2-503. Attestation and self-proving.

(a) Any will may be simultaneously executed, attested, and made self-proved. The self-proof shall be effective upon the acknowledgment by the testator and the affidavit of at least one witness, each made before an officer authorized to administer oaths under the laws of the state where execution occurs and evidenced by the officer's certificate, under official seal, in the following form or in a similar form showing the same intent:

I,__________, the testator, sign my name to this instrument this___day of__________, 20___, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my last will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen years of age or older (or if under the age of eighteen, am married or emancipated as decreed by a family court), of sound mind, and under no constraint or undue influence.

We,__________and__________, the witnesses, sign our names to this instrument, and at least one of us, being first duly sworn, does hereby declare, generally and to the undersigned authority, that the testator signs and executes this instrument as his last will and that he signs it willingly (or willingly directs another to sign for him), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is eighteen years of age or older (or if under the age of eighteen, was married or emancipated as decreed by a family court), of sound mind, and under no constraint or undue influence.

(b) An attested will may at any time subsequent to its execution be made self-proved by the acknowledgment thereof by the testator and the affidavit of at least one witness, each made before an officer authorized to administer oaths under the laws of the state where the acknowledgment occurs and evidenced by the officer's certificate, under the official seal, attached, or annexed to the will in the following form or in a similar form showing the same intent:

The State of __________ County of__________We, __________and __________, the testator and at least one of the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as his last will and that he had signed willingly (or willingly directed another to sign for him), and that he executed it as his free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and to the best of his knowledge the testator was at that time eighteen years of age or older (or if under the age of eighteen, was married or emancipated as decreed by a family court), of sound mind, and under no constraint or undue influence.

(c) A witness to any will who is also an officer authorized to administer oaths under the laws of this State may notarize the signature of the other witness of the will in the manner provided by this section.

In a couple of situations, a will properly self-proved may relieve the proponent of the will at probate from producing one or more witnesses to the court. If the probate of the will is uncontested, the court may order probate either on the strength of the pleadings, or upon the production of evidence. In the latter case, a self-proving affidavit may serve...