ND House Bill 1072 | NNA
Law

ND House Bill 1072

Notary Law Update: ND House Bill 1072

State: North Dakota

Summary:

An amendment to North Dakota’s probate statutes now formally permits a will to be acknowledged before a Notary or other officer authorized to take acknowledgments as one of two means to execute a will (the other being having the will witnessed by two attesting witnesses). HB 1072 also clarifies that the procedure for “self-proving” a will applies only to wills that have been executed before attesting witnesses and that a will that is acknowledged before a Notary is granted a rebuttable presumption that the will has satisfied the requirements for execution when the will is filed, a matter of great importance in cases where a will is contested.

Signed:  March 19, 2009

Effective:  August 01, 2009

Chapter: 283

Affects:

Amends Sections 30.1-08-02 and 30.1-15-06 of the North Dakota Century Code

Changes:
  1. Permits a testator to execute a will either by signing the will in the presence of two witnesses or acknowledging the signature before a Notary or other officer authorized to take acknowledgments.
  2. Grants a rebuttable presumption that a will satisfies the requirements for execution upon filing if it is acknowledged before a Notary or other officer authorized to take acknowledgments and is not self-proved.
  3. Clarifies that the procedures for self-proving a will – notarizing the signatures of the testator and attesting witnesses so that upon filing the will the attesting witnesses do not have to appear in court to establish the validity of the will – apply only to wills that have been executed with two attesting witnesses and not to wills that have been acknowledged before a Notary or other officer authorized to take acknowledgments.
Analysis:

In 2008, the National Conference of Commissioners on Uniform State Laws (NCCUSL) amended its Uniform Probate Code. Among the important revisions was a significant change in how a will is usually executed. In most states, a will must be in writing, signed by the testator in the testator’s own handwriting and witnessed by two attesting witnesses. According to the legislative comment provided by the Reporter to the UPC amendments, cases have begun to emerge where an attorney failed to notice that one or more witnesses to a will unintentionally did not sign the will. The oversight often occurs when the attorney prepares multiple estate planning documents, including a will, durable power of attorney, health-care power attorney and perhaps a revocable trust. Most of these other documents are routinely notarized, so the drafters of the amendments to the UPC felt that it would reduce confusion and chance for error if the will was notarized along with these other documents.  In addition, lay people often erroneously believe that notarization validates a will. The amendments to the UPC also clarify that the procedure for “self-proving” a will applies only to wills that are executed with two witnesses present and not to wills that are acknowledged. Finally, the amendment grants what is known as a “rebuttable presumption” that a will satisfies the requirements of execution upon filing the will. This is important because in probate proceedings involving a contested will, a clear and convincing standard of proof that the will has been executed properly must be met. The rebuttable presumption granted to an acknowledged will dispenses with this requirement, absent of evidence of fraud or forgery.

The amendments to the UPC are of great significance to Notaries Public and a recognition of the value and integrity of the notarial process.

Read the bill text.

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