Chapter 13. General Provisions
TITLE 12
Decedents' Estates and Fiduciary Relations
Administration of Decedents' Estates
CHAPTER 13. GENERAL PROVISIONS
§ 1301. 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.
27 Del. Laws, c. 268, § 2; Code 1915, § 3265; Code 1935, § 3729; 12 Del. C. 1953, § 1301; 59 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1.;
§ 1302. 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.
Code 1852, §§ 1767, 1768; 18 Del. Laws, c. 674; Code 1915, § 3334; 35 Del. Laws, c. 203, § 1; Code 1935, § 3799; 12 Del. C. 1953, § 1303; 59 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1.;
§ 1303. 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.
Code 1852, §§ 1767, 1768; 18 Del. Laws, c. 674; Code 1915, § 3334; 35 Del. Laws, c. 203, § 1; Code 1935, § 3799; 12 Del. C. 1953, § 1304; 59 Del. Laws, c. 384, § 1.;
§ 1304. 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.
Code 1852, §§ 1767, 1768; 18 Del. Laws, c. 674; Code 1915, § 3334; 35 Del. Laws, c. 203, § 1; Code 1935, § 3799; 45 Del. Laws, c. 232, § 1; 12 Del. C. 1953, § 1305; 59 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1.;
§ 1305. 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
SS
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)
(OFFICIAL CAPACITY OF OFFICER)
59 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1.;
§ 1306. 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.
59 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1.;
§ 1307. Will of nondomiciliary; admission, recording and evidence.
(a) The written will of a testator who died domiciled outside this State, but who owned real estate or personal property located in this State, may be admitted to probate and recorded in this State. If such will has been admitted to probate in the domiciliary jurisdiction, such admission and recording shall be accomplished by filing a verified copy of the will and a verified copy of the record admitting the same to probate as hereinafter provided. If such will has not been admitted to probate in the domiciliary jurisdiction, but has not been rejected from probate in the domiciliary jurisdiction except for a cause which is not grounds for rejection of a will of a testator who died domiciled in this State, and is valid under the laws of this State, such admission and recording shall be accomplished by proving such will in accordance with §§ 1302-1305 of this title. In either case, such will shall then have the same force and effect as if originally proved and allowed in this State.
(b) A copy, to be duly verified, must be certified by the proper officer under the officer's hand and seal of office, if there be a seal of office, and there must also be a certificate, either under the great seal of such state, territory or country or under the hand of the presiding judge of a court of record of the state, territory or country, that such copy is certified in due form and by the proper officer; and in case of a certificate under the hand of the presiding judge, there must be an attestation of the officer keeping the seal of the court, under the hand of the office and the seal, that the certificate is under the hand of the presiding judge entitled to full faith and credit. If the will shall have been proved in a foreign country, the certificate under the hand of a presiding judge, as hereinbefore required, may be attested by the resident United States Consul-General, or Consul-General's deputy, under the seal of the United States Consulate General.
(c) The will or a verified copy of it, and any verified copy of the record admitting the will to probate, shall be recorded in the office of the Register of Wills of any county where real estate or personal property of the testator is located, and the record, or an office copy thereof, shall be sufficient evidence. When the will or a verified copy of it, or any verified copy of the record admitting the will to probate is given in evidence, the Court of Chancery, on the application of the adverse party, may order it to be deposited and retained in the office of the Register of the county, and in that case an office copy thereof shall be sufficient evidence.
Code 1852, §§ 1648, 1649, 1767, 1768; 18 Del. Laws, c. 674; 24 Del. Laws, c. 234; Code 1915, §§ 3246, 3247, 3334; 28 Del. Laws, c. 224, § 1; 35 Del. Laws, c. 203, § 1; Code 1935, §§ 3711, 3712, 3799; 12 Del. C. 1953, § 1307; 59 Del. Laws, c. 384, § 1; 65 Del. Laws, c. 422, § 3; 70 Del. Laws, c. 186, § 1.;
§ 1308. Caveat against allowance of instrument as will; procedure.
(a) A caveat against the allowance of an instrument as a will shall be received by the Court of Chancery at any time prior to the entry of an order of probate. The caveat having been received, the Court shall appoint a time for hearing and award citations for the parties interested, and order service or publication of notice to the parties not within the State in accordance with § 1303 of this title. If, when a caveat is received, a time be appointed and process issued, it shall not be necessary to adjourn the taking of the proof and hearing; but an adjournment may be decreed, and other process awarded, or order made.
(b) The Court of Chancery may determine the costs occasioned by such caveat and decree the payment thereof.
38 Del. Laws, c. 177, § 1; Code 1935, § 3800; 12 Del. C. 1953, § 1309; 57 Del. Laws, c. 402, § 3; 59 Del. Laws, c. 384, § 1; 66 Del. Laws, c. 373, § 1; 75 Del. Laws, c. 97, § 19; 76 Del. Laws, c. 90, § 18.;
§ 1309. Review of proof of will; procedure.
(a) Any person interested who shall not voluntarily appear at the time of taking the proof of a will, or be served with citation or notice as provided in § 1303 of this title, shall, at any time within 6 months after the entry of the order of probate, have a right of review which shall on the person's petition be ordered by the Court of Chancery. Upon such review, there shall be the same proceedings as upon a caveat, and the allowance of the will and granting of letters may be affirmed or the will rejected and the letters revoked.
(b) The Court of Chancery may determine the costs occasioned by such review and decree the payment thereof.
Code 1852, §§ 1770, 1771; Code 1915, § 3336; 38 Del. Laws, c. 179, § 1; Code 1935, § 3801; 12 Del. C. 1953, § 1310; 49 Del. Laws, c. 117; 57 Del. Laws, c. 402, § 3; 59 Del. Laws, c. 384, § 1; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 97, § 1.;
§ 1310. Formal testacy proceedings; contested cases; testimony of attesting witnesses.
If the will is self-proved, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal without the testimony of any witness upon filing the will and the acknowledgment and affidavits annexed or attached thereto, and, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit, the will shall be admitted to probate subject to all other provisions of this title.
59 Del. Laws, c. 384, § 1.;