Every person not prohibited by the following section may, by will, dispose of any estate to which he shall be entitled at his death, and which, if not so disposed of, would devolve upon his heirs, personal representative, or next of kin. The power hereby given shall extend to any estate, right, or interest, to which the testator may be entitled at his death, notwithstanding he may become so entitled after the execution of the will.
No person of unsound mind, or under the age of eighteen years, shall be capable of making a will.
No will shall be valid unless it be in writing and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signature; and moreover, unless it be wholly in the handwriting of the testator, the signature shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time; and such witnesses shall subscribe the will in the presence of the testator, and of each other, but no form of attestation shall be necessary.
No appointment made by will, in the exercise of any power, shall be valid unless the same be so executed that it would be valid for the disposition of the property to which the power applies, if it belonged to the testator; and every will so executed shall be a valid execution of a power of appointment by will, notwithstanding the instrument creating the power expressly requires that a will made in execution of such power shall be executed with some additional or other form of execution or solemnity.
Notwithstanding the two preceding sections, a soldier being in actual military service, or a mariner or seaman being at sea, may dispose of his personal estate as he might heretofore have done; and the will of a person domiciled out of this state at the time of his death shall be valid as to his personal property in this state, if it be executed according to the law of the state or country in which he was so domiciled.
(a) If after executing a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator, or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, except that the provisions of section three, article three, chapter forty-one do not apply, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they are revived by testator's remarriage to the former spouse. For purposes of this section, divorce or annulment means any divorce or annulment which would exclude the spouse as a surviving spouse. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section. No change of circumstances other than as described in this section revokes a will.
(b) This section applies to all divorces, annulments or remarriages which become effective after June 5, 1992.
No will or codicil, or any part thereof, shall be revoked, unless under the preceding section, or by a subsequent will or codicil, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is required to be executed, or by the testator, or some person in his presence and by his direction, cutting, tearing, burning, obliterating, canceling or destroying the same, or the signature thereto, with the intent to revoke.
No will or codicil, or any part thereof, which shall be in any manner revoked, shall, after being revoked, be revived otherwise than by the re-execution thereof, or by a codicil executed in the manner hereinbefore required, and then only to the extent to which an intention to re-revive the same is shown.
No conveyance or other act subsequent to the execution of a will shall, unless it be an act by which the will is revoked as aforesaid, prevent its operation with respect to such interest in the estate comprised in the will as the testator may have power to dispose of by will at the time of his death.
The validity and effect of wills executed prior to the time this code becomes effective shall be determined by the laws of this state in force at the time of their execution. Every will re-executed, or republished, or revived by any codicil, shall, for the purposes of this chapter, be deemed to have been made at the time at which the same shall be so re-executed, republished, or revived.
If a will be attested by a person to whom, or to whose wife or husband, any beneficial interest in any estate is thereby devised or bequeathed, if the will may not be otherwise proved such person shall be deemed a competent witness; but such devise or bequest shall be void, except that, if such witness would be entitled to any share of the estate of the testator, in case the will is not established, so much of his share shall be saved to him as shall not exceed the value of what is so devised or bequeathed. In case the will be contested any such attesting witness may, at the instance of any contestant, be required, either in court or by deposition, to testify as upon, and with the effect of, cross-examination; and the giving of such testimony or testimony in rebuttal thereto by such attesting witness, shall not, if the will be established or admitted to probate, affect in any manner the devise or bequest to such attesting witness, or to the wife or husband of such witness.
If a will charging any estate with debts be attested by a creditor, or the wife or husband of a creditor, whose debt is so charged, such creditor shall, notwithstanding, be admitted a witness for or against the will.
No person shall, on account of his being executor of a will, be incompetent as a witness for or against the will.
A will shall be construed, with reference to the estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.
A provision for or advancement to any person shall be deemed a satisfaction in whole or in part of a devise or bequest to such person, contained in a previous will, if it would be so deemed in case the devisee or legatee were the child of the testator; and whether he be a child or not, it shall be so deemed in all cases in which it shall appear from parol or other evidence to have been so intended.
If a devisee or legatee die before the testator, or be dead at the time of making of the will, leaving issue who survive the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition thereof be made or required by the will. And if the devise or bequest be made to two or more persons jointly, and one or more of them die without issue, or be dead at the time of the making of the will, the part of the estate so devised or bequeathed to him or them shall not go to the other joint devisees or legatees, but shall, in the case of a devise, descend and pass to the heirs at law, and, in the case of a bequest, go and pass to the personal representative, of the testator, as if he had died intestate, unless the will otherwise provides.
Unless a contrary intention shall appear by the will, such real or personal estate, or interest therein, as shall be comprised in any devise or bequest in such will, which devise or bequest shall fail or be void, or be otherwise incapable of taking effect, shall, if the estate be real estate, be included in the residuary devise, or, if the estate be personal estate, in the residuary bequest, if any residuary devise or bequest be contained in such will, and, in the absence of such residuary devise or bequest, shall pass as in case of intestacy. However, when a devise or bequest shall be included in a residuary clause of the will, which devise or bequest shall fail or be void or be otherwise incapable of taking effect, it shall not pass as in case of intestacy but shall pass to the remaining residuary devisees or legatees or devisee or legatee, if any there be, in proportion to their respective shares or interests in the residue.
§41-3-5. Construction of devises in general terms.
A devise of the land of the testator, or of the land of the testator in any place, or in the occupation of any person mentioned in his will, or otherwise described in a general manner, and any other general devise which would describe a leasehold estate, if the testator had no freehold estate which could be described by it, shall be construed to include his leasehold estates, or any of them to which such description shall extend, as well as freehold estates, unless a contrary intention shall appear by the will.
A devise or bequest shall extend to any real or personal estate which the testator has power to appoint as he may think proper, and to which it would apply if the estate were his own property, and shall be construed to operate as an exercise of such power with respect to such property unless a contrary intention shall appear by the will of said testator, or unless:
(a) The instrument creating said power of appointment (whether said instrument was executed before or after the effective date of this section) provides that such power must be specifically referred to and expressly exercised; and
(b) The instrument creating said power of appointment contains a provision disposing of said real or personal estate in the event of the failure of the donee of the power to so exercise said power.
Notwithstanding any other provision of law, and notwithstanding there is no other ground of equity jurisdiction, courts possessing general equity powers shall have and take jurisdiction of a suit to construe an ambiguous will at the suit of the executor, or administrator with the will annexed, or of any beneficiary thereunder whose interests are affected by a construction of the ambiguous provision.
(a) A will may validly devise or bequeath property to the trustee of a trust established or to be established: (i) during the testator's lifetime by the testator, by the testator and some other person, or by some other person including a funded or unfunded life insurance trust, although the trustor has reserved any or all rights of ownership of the insurance contracts; or (ii) at the testator's death by the testator's devise to the trustee, if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before, or concurrently with the execution of the testator's will or in another individual's will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise or bequest is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator's death.
(b) Unless the testator's will provides otherwise, property devised or bequeathed to a trust described in subsection (a) is not held under a testamentary trust of the testator but it becomes a part of the trust to which it is devised or bequeathed, and must be administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator's death.
(c) Unless the testator's will provides otherwise, a revocation or termination of the trust before the testator's death causes the devise or bequest to lapse.
Sections eight, nine, ten and eleven of this article apply to a will of a testator who dies after the effective date of this legislation.
Sections eight through eleven of this article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this legislation among states enacting it.
Sections eight through eleven of this article may be cited as the "Uniform Testamentary Additions to Trusts-Uniform Act (1991)".
If any person die leaving a child, or his wife with child, which shall be born alive, and leaving a will made when such person had no child living, wherein any child he might have is not provided for or mentioned, such child, or any descendant of his shall succeed to such portion of the testator's estate as he would have been entitled to if the testator had died intestate; and towards raising such portion the devisees and legatees shall, out of what is devised and bequeathed to them, contribute ratably, either in kind or in money, as a court, in the particular case, may deem most proper. But if any such child, or descendant, die under the age of eighteen years, unmarried and without issue, his portion of the estate, or so much thereof as may remain unexpended in his support and education, shall revert to the person or persons to whom it was given by the will.
If a will be made when a testator has a child living, and a child be born afterwards, such after-born child or any descendant of his if not provided for by any settlement, and neither provided for nor expressly excluded by the will, but only pretermitted, shall succeed to such portion of the testator's estate as he would have been entitled to if the testator had died intestate, toward raising which portion the devises and legatees shall, out of what is devised and bequeathed to them, contribute ratably, either in kind or in money, as a court in the particular case, may deem most proper. But if any such after-born child or descendant die under the age of eighteen years, unmarried and without issue, his portion of the estate, or so much thereof as may remain unexpended in his support and education, shall revert to the person or persons to whom it was given by the will.
A person having custody of a will shall, within thirty days after the death of the testator is known to him deliver such will to the clerk of the county court having jurisdiction of the probate thereof, or to the executor named in the will, who shall offer it for probate, or deliver it to the clerk, within a reasonable time. Any person who shall, without reasonable cause, neglect so to deliver a will shall be guilty of a misdemeanor, and, on conviction, be punished by a fine not exceeding $200; and shall in addition be liable to any person interested in such will for all damages caused by such neglect.
Upon delivery of a will unto him as provided in the next preceding section, the clerk shall notify by mail or otherwise the executor and the beneficiaries named in the will, of such delivery, and shall keep the same safe in his office until proceedings may be had for the probate thereof, or until it is demanded by an executor or other person authorized to demand it for the purpose of having it proved according to law.
A county court having jurisdiction to probate a will, or the clerk thereof in the vacation of the court, upon being informed that any person has in his custody the will of a decedent, shall summon him and by proper process compel him to produce the same. Upon the production of the will it shall remain on file in the clerk's office until proceedings are taken for the probate thereof. If any party desires to contest such will he may by application to the court or the clerk thereof in vacation have a rule against the executors and all the beneficiaries named in the will, returnable to the court, to be served in the manner prescribed in this article for service of process upon a petition to probate a will in solemn form, to offer such will for probate. If none of the executors or beneficiaries offers such will for probate within ten days after the return day of the rule, the court of its own motion shall offer the same for probate, so that the parties adversely affected by the will may contest the same.
The county court shall have jurisdiction of the probate of wills according to the following rules:
(a) In the county wherein the testator, at the time of his death, had a mansion house or known place of residence; or
(b) If he had no such house or place of residence, then in the county wherein any real estate devised thereby is situated; or
(c) If there be no real estate devised thereby, and the testator had no such house or place of residence, then in the county wherein he died, or in any county wherein he had any property at the time of his death; or
(d) If he died out of this state, his will or an authenticated copy thereof, may be admitted to probate in any county in this state, wherein there is property devised or bequeathed thereby.
The county court, sitting in a regular or special session, shall hear and determine all proceedings to admit a will to probate in solemn form. Upon or at any time after the production of a will, any person may offer the will for probate in solemn form by filing in the county court having jurisdiction a petition duly verified by affidavit, stating when and where the testator died, his last place of residence, the nature of his estate, the relationship to decedent and place of residence of each of his heirs at law and distributees, surviving wife or husband, and each of the beneficiaries of the will. Process shall issue against and be served upon all persons interested in the probate of the will to appear at a day named, and show cause why the will should not be admitted to probate. A guardian ad litem for any person under disability shall be appointed, upon whom such process may be served, and such process shall be served upon parties resident in the state, and proceedings by order of publication or service in person without the state shall be had against all nonresidents and against all persons to the petitioner unknown, in the same manner as process is served and such proceeding had in suits in equity. At any time after the petition is filed and before final order is made admitting or refusing to admit the will to probate any person desiring to contest the will may appear and file a notice of contest in the proceeding, stating concisely the grounds of such contest. Thereupon, process shall issue on such notice and be served upon any person whose interest will be adversely affected by a refusal to admit the will to probate to appear and defend his interest. Any person sui juris may waive service of process upon the petition or notice, and the guardian ad litem of any person under disability may waive service of any such process, upon such person and upon himself Process upon the petition or notice shall be served at least ten days before the return day thereof. Any petition or notice of contest hereunder may be filed in the office of, process be issued, served and returned, and a guardian ad litem appointed by, the clerk of the court in the vacation of the court, and the proceeding may be matured and set down for hearing.
If no contest be made, the court may, on the return day of the summons on the petition, and, if contest be made, on the return day of the process upon notice of contest, or at any day thereafter fixed by the court, proceed to hear and determine the question of probate, and enter such order or judgment thereon as the law and the evidence in the case requires.
Any person feeling himself aggrieved by any order or judgment of the county commission admitting or refusing to admit any will to probate may, within three months, or, if such a person be under any disability within three months after such disability ceases, file his petition in the circuit court of such county, or before the clerk thereof, appealing to the circuit court from such order or judgment, stating in the petition the grounds of appeal and the parties interested in the probate of the will; and, in case of appeal, it shall be the duty of the clerk of the county commission promptly to transmit to the clerk of the circuit court, the will and all original papers filed or used in the proceedings for probate, together with copies of all orders made therein. The clerk of the circuit court shall, upon the filing of such petition, issue process thereon, and the case shall be proceeded in, tried and determined in such court, regardless of the proceedings before the county commission, and in the same manner and in all respects as if the application for such probate had been originally made to the circuit court.
If there be more than one testamentary paper in question in any such proceeding, the circuit court shall order them all to be produced. The circuit court shall order a trial by jury, if demanded by any person interested, to ascertain whether the will in question, or if there be more than one, which of them, or what part or parts of either or any of them, is the true will of the decedent; and, if trial by jury be not asked, the circuit court shall proceed to try and decide the question of probate, and shall make and enter in relation thereto such final judgment or order as the law and the evidence may require. A copy of such judgment or order shall be returned to, filed and recorded in, the office of the clerk of the county court, and also any will established in such proceedings and admitted to probate in the circuit court shall be returned to, filed, and recorded (if not already of record) in such office.
Every such order or judgment of a county court not appealed from in proceedings for probate in solemn form, or in an ex parte proceeding which has been converted into a proceeding in solemn form by a contest therein, and every such order or judgment of a circuit court on appeal, shall be a bar to a bill in equity to impeach or establish such will, unless upon grounds which would give to a court of equity jurisdiction over other judgments at law.
At, or at any time after, the production of a will, any person may move the county court having jurisdiction, or the clerk thereof in the vacation of the court, for the probate of such will, and the court or the clerk thereof, as the case may be, may, without notice to any party, proceed to hear and determine the motion and admit the will to probate, or reject the same. The probate of, or refusal to probate, any will, so made by the clerk, shall be reported by him to the court at its next regular session, and, if no objection be made thereto, and none appear to the court, the court shall confirm the same. If any person entitled to contest the probate of a will shall appear before the clerk of the court before a decision is made by him admitting or refusing to admit the will to probate, or before the county court at any time before it has made an order confirming the action of the clerk in admitting or refusing to admit such will to probate, or before such court in any ex parte proceeding to probate a will made in the court in the first instance before it has made an order admitting or refusing to admit the will to probate, and file a notice of contest of the probate of the will, stating distinctly the several grounds of objection, process on such notice shall be issued and the proceeding thereafter shall be heard before the county court only, and in all respects in the same manner as if the will had been offered for probate in solemn form; and any judgment entered by the county court on such proceeding shall have the same effect, and an appeal shall lie therefrom, as if the original proceeding to probate the will had been made in solemn form: Provided, That the only notice to the parties interested or process against them required in such case shall be upon the notice of contest. In all ex parte proceedings in which there is no contest, the action of the clerk in admitting the will to probate, when confirmed by the court, shall have the same effect in all respects as if the will had been admitted to probate and record by the county court in the first instance.
After a judgment or order entered as aforesaid in a proceeding for probate ex parte, any person interested who was not a party to the proceeding, or any person who was not a party to a proceeding for probate in solemn form, may proceed by complaint to impeach or establish the will, on which complaint, if required by any party, a trial by jury shall be ordered, to ascertain whether any, and if any, how much, of what was so offered for probate, be the will of the decedent. The court may require all other testamentary papers of the decedent to be produced, and the inquiry shall then be which one of all, or how much of any, of the testamentary papers is the will of the decedent. If the judgment or order was entered by the circuit court on appeal from the county commission, such complaint shall be filed within six months from the date thereof, and if the judgment or order was entered by the county commission and there was no appeal therefrom, such complaint shall be filed within six months from the date of such order of the county commission. If no such complaint be filed within the time prescribed, the judgment or order shall be forever binding. Any complaint filed under this section shall be in the circuit court of the county wherein probate of the will was allowed or denied.
Notwithstanding the two preceding sections, any person interested who, at the time of the judgment or order is under the age of eighteen years, or is a convict or a mentally incapacitated person, may file a complaint to impeach or establish the will, within one year after he becomes of age, or other disability ceases; and any person interested who, at that time, resided out of the state, or was proceeded against by publication, may, unless he actually appeared as a party or was personally summoned, file such complaint within one year after the entry of such judgment or order.
Where a will relative to an estate within this state has been proved without the same, an authenticated copy thereof and the certificate of probate thereof, may be offered for probate in this state. When such copy is so offered, the county commission, or the clerk thereof in the vacation of the commission, to which or to whom it is offered, shall presume, in the absence of evidence to the contrary, that the will was duly executed and admitted to probate as a will of personalty in the state or country of the testator's domicile, and shall admit such copy to probate as a will of personalty in this state; and if it appears from such copy that the will was proved in the foreign court of probate to have been so executed as to be a valid will of land in this state by the laws thereof, such copy may be admitted to probate as a will of real estate. But any person interested may, within one year from the time such authenticated copy is admitted to record, upon reasonable notice to the parties interested, have the order admitting the same set aside, upon due and satisfactory proof that such authenticated copy was not a true copy of such will, or that the probate of such will has been set aside by the court by which it was admitted to probate, or that such probate was improperly made.
The deposition of an attesting witness or other person may be read on the hearing of any proceeding to probate a will, when under the facts and circumstances the deposition of the witness would have been admissible on the trial of an action at law in the circuit court. In any proceeding in which there is no contest, the deposition may be taken at any time after the will is offered for probate, and without notice to any person. Any such deposition may be in the form of an affidavit. In any case in which there is a contest, depositions may be taken at any time after the service of process upon the notice of contest, and after notice to all parties adversely interested as prescribed for the taking of depositions in actions at law, and the depositions shall be taken and certified and returned as required in other cases. In any case in which the deposition of an attesting witness is required, the clerk of the county court shall transmit the original will by some safe method of conveyance to an officer authorized to take depositions at the place where the deposition is to be taken. A copy of the will shall be made and filed by the clerk in his office before the original is sent out for the purpose of taking depositions. In any case, with the consent of all parties appearing, or of their counsel, a photostatic copy of the original will may be used in taking the deposition of an attesting witness instead of the original document. Any party may have compulsory process to compel the attendance of a witness as in any suit in the circuit court. In any proceeding to probate or record an authenticated copy of a will that has been probated in another jurisdiction, depositions may be taken as in an original proceeding to probate.
Any or all of the attesting witnesses to any will, at the request of the testator, may make and subscribe an affidavit before any officer authorized to administer oaths, in or out of the state, stating such facts as would be required of them in testimony in court to establish and prove the will; and if the testator shall preserve such affidavits with the will, and the same are produced and offered in evidence when the will is offered for probate, they shall be admissible in evidence and have the same probative value as if the affiants had appeared in court or before the clerk thereof and testified to the facts stated in the affidavit: Provided, That such affidavits shall not be admissible in evidence in any case in which there is a contest over the will.
For the trial of any appeal under the provisions of sections seven and ten of this article, or for the trial of any issues to be submitted to a jury under the provisions of sections eight and eleven of this article, if good cause therefor be shown, and there be no unreasonable delay in applying for such order, the circuit court, or judge thereof in vacation, may order the contestants to file a particular statement of the facts expected to be proved by them at the trial, and may stay the proceedings until a reasonable time after such order is complied with; and in like manner after the contestants have filed such statement, if good cause therefor appear, and there be no unreasonable delay in applying for such order, such court, or judge thereof in vacation, may order the proponents of the will to file a particular statement of the facts expected to be proved by them at the trial; which statement, in either case, shall be made under the oath of the parties or their attorneys to the effect that the affiants believe the same will be supported by evidence at the trial. If either the contestants or the proponents fail to file any such statement when so required, or if any such statement after the same has been filed be adjudged insufficient in whole or in part, the court, or the judge thereof in vacation, may, as justice may require, grant further time for filing same, or permit the statement filed to be amended, or may, at the trial, exclude the evidence offered by the party in default as to any matter which he has so failed to state or has insufficiently stated. But no statement which is sufficient to inform the adverse parties of the nature and substance of the facts to be shown against or in support of the will shall be adjudged insufficient; nor shall any such statement in any manner affect the burden or order of proof imposed by law on the parties.
Every will or authenticated copy of a will, when admitted to probate under the provisions of this article, shall be recorded by the clerk of the county court, and indexed by him in a general index of wills, and every such will or copy when recorded shall remain in his office except when removed therefrom by the order of a court, or under a subpoena duces tecum, or otherwise as provided by law.
A duly certified copy of such will when probated, or of an authenticated copy of a foreign will admitted to record as a will of real estate, may be recorded in any other county of the state wherein there is any real estate devised by such will. It is the duty of the personal representative of the testator to record an authenticated copy of such will in each county in which any real estate is located of which the personal representative under the powers conferred by the will may make sale and disposition, and the duty of the devisee or devisees, claiming title under the will to any real estate of which the personal representative may not by the powers conferred in the will make sale and disposition, to cause such copy to be recorded in each county in which any such real estate is located.
The title of a bona fide purchaser without notice and for valuable consideration from the heir or heirs at law of a person who has died heretofore, or who may die hereafter, having title to any real estate of inheritance in this state, shall not be affected by a devise of such real estate made by the decedent, unless within one year after the testator's death the will devising the same, or if such will has been probated without this state, an authenticated copy thereof, shall be filed for probate before the court having jurisdiction for that purpose, or the clerk thereof, and shall afterwards be admitted to probate as a will of real estate and be recorded in the proper clerk's office: Provided, however, That if any devisee under such will mentioned in this section is at the time of the testator's death an infant, or insane, or a convict, the limitation created by this section shall not affect such infant, insane person or convict until after the expiration of one year from the removal of such disability.
The title of a bona fide purchaser of real estate, without notice and for valuable consideration, from the devisee or devisees of a testator, a will of whom has been duly admitted to probate devising such real estate, shall not be affected or impaired by any devise or other disposition of any such real estate by the testator by or in any other will or wills executed by him subsequent to the instrument already admitted to probate as his last will and testament, unless any such subsequently executed will (or if any such will has been probated without the state, an authenticated copy thereof) shall be filed for probate in the court having jurisdiction for that purpose, or with the clerk thereof, within one year next after the testator's death and shall afterwards be admitted to probate as the will of such real estate and entered of record in the proper clerk's office: Provided, however, That if any devisee under any such subsequently executed will is at the time of the testator's death an infant, or insane, or a convict, the limitation created by this section shall not affect the rights of any such infant, insane person or convict until after the expiration of one year from the removal of such disability.