Delaware § 1304 Unavailability of witnesses

Delaware Statutes

§ 1304 — Unavailability of witnesses

Delaware § 1304

Title12

PartAdministration of Decedents’ Estates

Ch. 13GENERAL PROVISIONS

This text of Delaware § 1304 (Unavailability of witnesses) is published on Counsel Stack Legal Research, covering Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Del. Code tit. 12, § 1304 (2026).

Text

(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.

(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 testato

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(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.

(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.

Legislative History

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