Detailed Answer
This article explains how to determine whether a document you received is the original last will and testament under North Dakota law, what features to look for, and what to do if you only have a copy. This is educational information only and not legal advice.
Why the original matters
Courts generally prefer to receive the original will when someone opens probate. The original helps prove the testator’s (the person who made the will) signature, witness signatures, and any notarization or self-proving statements. If you only have a copy, the court may require extra proof before admitting the copy to probate.
How to tell whether a will is the original
- Look for original signatures. Originals normally contain the testator’s and witness(es)’ handwritten signatures in ink. A photocopy will show the same signatures but will not have the tactile qualities of original ink.
- Check for a self-proving affidavit or notary certificate. Many wills include a self-proving affidavit signed by the witnesses and notarized so probate can proceed without live witness testimony. A notarized affidavit or notary seal is a strong sign you have an original. Under North Dakota probate procedures, a self-proving affidavit speeds admission of the will to probate (see North Dakota Century Code and probate rules for details; see links below).
- Inspect the paper and ink. Originals are printed or handwritten on paper with differences in ink saturation, indentations from a pen, or an embossed notary seal. Photocopies often have uniform grayscale and lack depth or embossed seals.
- Count pages and look for initials or handwritten page numbers. Some wills have initials in margins or page-numbering added by the drafter. Originals may show impressions or ink that a copier reproduces less distinctly.
- Check for an attestation clause and witness information. A typical will contains an attestation clause where witnesses confirm they observed the signature. If that clause is present and signed by witnesses, that supports originality.
- Consider the chain of custody. Ask where the document came from. Originals are often kept by the testator’s attorney, a safe deposit box, or with the testator. A credible chain of custody (who had the document and when) makes it more likely the document is original.
- Compare with other documents. If you can, compare the signature on the will with other known original signatures of the testator (e.g., on estate planning documents, checks) and have a neutral person visually compare them. Courts sometimes accept expert handwriting analyses if the signature is contested.
If you cannot find the original or you only have a copy
If the original cannot be located, North Dakota courts may allow a copy to be admitted to probate, but you will likely need to provide additional proof. Typical steps include:
- Contact the district court clerk in the county where the decedent was domiciled to ask about local probate procedures and how to file a will for probate.
- Locate and contact the attesting witnesses. Their testimony about the will’s execution is often crucial when only a copy exists.
- Gather any corroborating evidence: testimony from the testator’s attorney, bank records showing safe-deposit actions, emails or drafts, or evidence the original was lost or destroyed without the testator’s intent to revoke.
- File a petition to admit the copy to probate under the applicable North Dakota probate procedures. If the original was lost or destroyed, you may need to show by the required standard of proof that the copy accurately reflects the testator’s will and that the original’s absence was not due to revocation by the testator.
When to contact an attorney or the court
Contact a probate attorney if:
- You are unsure whether the document is the original.
- Witnesses cannot be located or disagree about execution.
- Someone contests the will or claims it was revoked.
- The original is missing and you need to file the copy with the court.
Where to find the rules and statutes
North Dakota’s probate statutes and procedures govern will admission, self-proving affidavits, and how to handle lost or destroyed wills. You can review the North Dakota Century Code and related probate rules for the specific statutory language. For general reference, see the North Dakota Century Code — Probate sections: https://www.legis.nd.gov/cencode/t30.1. The district court clerk in the county where the decedent lived can explain local filing steps and forms.
Disclaimer: This information is educational only and does not create an attorney-client relationship. It is not legal advice. For advice about a specific situation, consult a licensed North Dakota attorney experienced in probate and estate matters.