Delaware Code Title 12 Sec. 1304 – Unavailability of witnesses
(a) In case any attesting and subscribing witness to a will, at the time the will is presented for probate, is dead, is serving in the armed forces of the United States or is a merchant sailor, or is mentally or physically incapable of testifying or is not within the State, or is otherwise unavailable, proof of the signature of such witness shall be sufficient. Such proof shall be the testimony in person or by deposition of a credible disinterested person that the signature of the witness on the will is in the handwriting of the person whose signature it purports to be, or other sufficient proof of such handwriting.
Terms Used In Delaware Code Title 12 Sec. 1304
- Deposition: An oral statement made before an officer authorized by law to administer oaths. Such statements are often taken to examine potential witnesses, to obtain discovery, or to be used later in trial.
- Probate: Proving a will
- State: means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States. See Delaware Code Title 12 Sec. 39A-101
- Testator: A male person who leaves a will at death.
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
- United States: includes its territories and possessions and the District of Columbia. See Delaware Code Title 1 Sec. 302
(b) If a will cannot be proven because the signature of 1 or more of the attesting and subscribing witnesses to it cannot be proven, then proof of the signature of the testator shall be sufficient. Where the signature of 1 witness can be proven, the proof of the signature of the testator shall be the testimony in person or by deposition of a credible disinterested person that the signature of the testator on the will is in the handwriting of the person whose will it purports to be, or other sufficient proof of such handwriting. Where none of the signatures of the witnesses can be proven, the proof of the signature of the testator shall be the testimony in person or by deposition of 2 credible disinterested persons that the signature of the testator on the will is in the handwriting of the person whose will it purports to be, or other sufficient proof of such handwriting.
(c) The foregoing provisions of this section shall not preclude the Register of Wills from requiring, in addition, the testimony in person or by deposition of any subscribing witness, or proof of such other pertinent facts and circumstances as the Register deems necessary to admit the will to probate.
Code 1852, §§ ?1767, 1768; 18 Del. Laws, c. 674; Code 1915, § ?3334; 35 Del. Laws, c. 203, § ?1; Code 1935, § ?3799; 45 Del. Laws, c. 232, § ?1; 12 Del. C. 1953, § ?1305; 59 Del. Laws, c. 384, § ?1; 70 Del. Laws, c. 186, § ?1;