North Carolina § 28A-2A-8 - Manner of probate of attested written will.

§ 28A-2A-8. Manner of probate of attested written will.

An attested written will, executed as provided by G.S. 31-3.3, may be probated in the following manner: Upon the testimony of at least two of the attesting witnesses; or If the testimony of only one attesting witness is available, then Upon the testimony of such witness, and Upon proof of the handwriting of at least one of the attesting witnesses who is dead or whose testimony is otherwise unavailable, and Upon proof of the handwriting of the testator, unless he signed by his mark, and Upon proof of such other circumstances as will satisfy the clerk of the superior court as to the genuineness and due execution of the will; or If the testimony of none of the attesting witnesses is available, then Upon proof of the handwriting of at least two of the attesting witnesses whose testimony is unavailable, and Upon compliance with paragraphs c. and d. of subsection (a)(2) of this section; or Upon a showing that the will has been made self-proved in accordance with the provisions of G.S. 31-11.6. Due execution of a will may be established, where the evidence required by subsection (a) of this section is unavoidably lacking or inadequate, by testimony of other competent witnesses as to the requisite facts. The testimony of a witness is unavailable within the meaning of this section when the witness is dead, out of the State, not to be found within the State, incompetent, physically unable to testify or refuses to testify. History (1953, c. 1098, s. 12; 1977, c. 795, s. 2; 1979, c. 107, s. 4; 2011-344, ss. 3, 4.) Editor's Note. - This section was formerly G.S. 31-18.1. It was recodified as G.S. 28A-2A-8 by Session Laws 2011-344, s. 3, effective January 1, 2012, and applicable to estates of decedents dying on or after that date. Effect of Amendments. - Session Laws 2011-344, s. 4, effective January 1, 2012, and applicable to estates of decedents dying on or after that date, made a minor stylistic change in subdivision (a)(3)b.; inserted "of this section" in subsection (b); and deleted "insane or otherwise" preceding "incompetent" in subsection (c). Legal Periodicals. - For note as to procedure in probating will when witnesses are dead, see 35 N.C.L. Rev. 341 (1957). For comment on the necessity for proof of due execution of a will, see 3 Wake Forest Intra. L. Rev. 12 (1967). For survey of 1977 law on wills, trusts and estates, see 56 N.C.L. Rev. 1152 (1978). For survey of 1979 property law, see 58 N.C.L. Rev. 1509 (1980).