Formal testacy proceedings; contested cases; testimony of attesting witnesses.
(a) If evidence concerning execution of an attested will which is not self-proved is necessary in contested cases, the testimony of at least one of the attesting witnesses, if within the state competent and able to testify, is required. Due execution of an attested or unattested will may be proved by other evidence.
(b) 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, unless there is proof of fraud or forgery affecting the acknowledgment or affidavit.
Source:Laws 1974, LB 354, § 108, UPC § 3-406.
This is a procedural section defining evidence that may be used to prove an otherwise valid will; it does not create another category of valid wills. In re Estate of Flicker, 215 Neb. 495, 339 N.W.2d 914 (1983).
In a self-proved will, compliance with signature requirements is conclusively presumed and other requirements of execution are presumed, subject to rebuttal. The presumption of due execution arising from the acknowledgment of a self-proved will may be attacked by proof of fraud or forgery. In the absence of proof that the formalities required by the statute were not complied with, the presumption of due execution is conclusive. In re Estate of Flider, 213 Neb. 153, 328 N.W.2d 197 (1982).
The proponent of a self-proved will, as provided for under this statute, need not call any attesting witness to make a prima facie case of testamentary capacity. In re Estate of Camin, 212 Neb. 490, 323 N.W.2d 827 (1982).