As with many legal questions, the answer is: “it depends.” In order for a will to be validly executed, Oregon law requires that a will be (1) in writing, (2) signed by the testator (or person making the will), and (3) signed by two witnesses who saw the testator sign the will. ORS 112.235. The writing requirement includes both handwritten and typed documents. If the testator is physically unable to sign the will, they may direct another person to sign for them so long as that other person also signs the will.
Most wills also include a “self-proving” affidavit, which is signed by the testator and both witnesses. When a person dies, their will is submitted to the court to be proven as valid and admitted to probate. If the will does not contain a self-proving affidavit, the witnesses to the will’s signing will have to testify in court that they saw the decedent (the deceased testator) sign their will. Because it is often impractical to track down witnesses years after a will is signed, the self-proving affidavit can be used as proof that the will is valid in lieu of using witness testimony.
In addition to the requirements above, a person must have capacity to make a will. A person has capacity to make a will, or testamentary capacity, if they are 18 years or older (or lawfully married or emancipated), and of sound mind. ORS 112.225.
Oregon case law has further clarified that “sound mind” means that:
- The person must be able to understand the nature of the act in which they are engaged;
- Know the nature and extent of their property;
- Know, without prompting, the claims, if any of those who are, should or might be, the natural objects of their bounty; and
- Be cognizant of the scope and reach of the provisions of the document.
- In re Cook’s Estate, 231 Or 133, 136, 372 P2d 520 (1962).
What Happens if a Will Doesn’t Meet the Requirements?
When the Oregon legislature drafted the requirements for wills, they wanted to balance their concerns for potential fraud and elder abuse with their desire not to create unnecessary barriers to create wills. As a result, Oregon decided to prohibit holographic wills (a will in the testator’s handwriting but with no witnesses), and instead provided a mechanism for proving an otherwise defective will. This mechanism is codified as ORS 112.238.
ORS 112.238 allows for a writing that fails to meet the requirements of ORS 112.235 to be treated as if it had been executed in compliance with the rules if it can be proven by clear and convincing evidence that the testator intended the writing to be their will. In this context “clear and convincing” means that something is highly probable.
Mechanics of Proving a Defective Will
In order to have a will admitted to probate under ORS 112.238, an attorney must file a petition with the court that explains the basis for treating the document as a validly executed will. The attorney must also give notice of the petition to the decedent’s heirs, and provide them with 20 days to object to the proposed will.
After a notice period expires, the court can either make a determination on the attorney’s petition or set an evidentiary hearing. However, because ORS 112.238 is a relatively new procedure, courts have been more likely to set a hearing. At the hearing the attorney will have to present clear and convincing evidence through witness testimony to the judge. At the conclusion of the hearing the judge will make a determination as to whether or not they heard clear and convincing evidence, and if so, will admit the will to probate.
As you might imagine, proving a defective will is costly, time consuming, and can be emotionally taxing for your loved ones. While there is no legal requirement to have an attorney create your will, doing so will give you the peace of mind that it was executed in compliance will Oregon law.
If you have an existing will or estate plan that you would like reviewed, or would like to have one created for you, our estate planning attorneys are here to help! Please call or click here to schedule your complimentary estate planning consultation.