Will Contests, Self-Proving Wills

Will contests are unique for several reasons. Perhaps most significantly, the burden is on the proponent of the document to prove the will was executed and that the testator possessed the requisite capacity. Many times the “proponent” of the will is the defendant in the lawsuit. So, the will contest instructions contemplate the defendant presenting evidence first to make a prima facie showing of validity. When is this showing made? It obviously depends, but “self-proving” wills automatically make this prima facie showing.

Wills must be executed in the presence of two disinterested witnesses. A “self-proving” will, however, is one which is also further witnessed by a notary or someone authorized to administer oaths. Section 474.337, RSMo. A self-proving will creates a prima facie showing of due execution and capacity. Stroup v. Leipard, 981 S.W.2d 600, 605 (Mo. App. W.D. 1998). Therefore, “in a will contest, a self-proving will establishes a prima facie case that the will was duly executed and that the decedent had the testamentary capacity at the time of the will’s execution.” Milum v. Marsh ex rel. Lacey, 53 S.W.3d 234, 238 (Mo. App. S.D. 2001).