SC Senate Bill 143 | NNA
Law

SC Senate Bill 143

Notary Law Update: SC Senate Bill 143

State: South Carolina

Summary:

South Carolina Senate Bill 143 shows the value of having testamentary documents notarized, or in the case of wills, self-proved by attaching the affidavits of the testator and witnesses to the will.

Signed:  June 07, 2013

Effective:  January 01, 2014

Chapter: TBD

Affects:

Amends Section 62-3-406 of the South Carolina Code

Changes:
  1. Provides that if a will is self-proved, the will satisfies the requirements for execution, subject to rebuttal, without the testimony of any attesting witness, upon filing the will and the acknowledgment and affidavits annexed or attached to it.
  2. Provides that if a will is notarized, but not self-proved, there is a rebuttable presumption that the will satisfies the requirements for execution upon filing the will.
  3. Provides that if a will is witnessed pursuant to Section 62-2-502, but not notarized or self-proved, the testimony of at least one of the attesting witnesses is required to establish proper execution if the witness is within this state, competent, and able to testify. Proper execution may be established by other evidence, including an affidavit of an attesting witness. An attestation clause that is signed by the attesting witnesses raises a rebuttable presumption that the events recited in the clause occurred.
Analysis:
Senate Bill 143 is a large bill that revises the probate laws of South Carolina. In the small part of the bill that is relevant to South Carolina and other Notaries, the bill clarifies that while a will is not required to be notarized, a will that is notarized is granted a presumption in court that the requirements for execution of the will were satisfied upon filing the will. This means that the parties bringing the will do not have to prove due execution of the will in order to enter it into probate. Of course, once the notarized will is entered into probate, the presumption that it was properly executed can be rebutted. A “self-proved” will is a will into which an affidavit has been incorporated, signed by the testator, the witnesses and a Notary, declaring the due execution of the will, the testamentary capacity of the testator and the absence of undue influence worked upon the testator. Probate of a self-proved will is freed of the requirement of producing the available testimony of such witnesses to the due execution of the will, as otherwise required by the South Carolina Code as to formal testacy proceedings. Bills such as SB 143 are important since they remind Notaries that it is possible that they may be asked to notarize wills or self-proving affidavits to wills, and that the notarization process is valuable when properly performed upon the documents.
 

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