12.02.160 Requirements for a Valid Will

(a) Applicable Law. A written Will may be declared valid if it was executed in compliance with this chapter; or the law in force at the place and time the Will was executed; or the law in force at the time of execution or at the time of death, at the place where the person making the Will was domiciled or had a place of abode.

(b) Qualification to Make a Will.

Any person eighteen (18) or more years of age who is of sound mind may make a Will. To be effective, a Will must be declared valid by the process provided for in this chapter.

(1) Will in Writing. Every Will shall be in writing and the document shall declare that it is the last Will of the person making the Will.

(2) Signature. Every Will must be signed by the person making the will along with two witnesses. If the person making the Will is unable to sign, some other person may be designated to sign the Will on the Willmaker's behalf so long as the signature takes place in the presence and by the direction of the person making the Will and in the presence of two witnesses.

(3) Witnesses. At least two people must attest to the signature on the Will. Each witness shall attest that he/she witnessed the Willmaker sign the Will or witnessed the Willmaker acknowledge the signature placed on the Will at his/her direction.

(d) Who May Witness a Will.

(1) Qualification. Any person who would be found competent to testify as a witness in Court to the facts relating to the signature on the Will may act as a witness.

(2) Interested Party. A Will or any provision thereof is not invalid because the Will is signed by a party with an interest in the Will, so long as the Will is also signed by two other disinterested witnesses. An "Interested Witness" means any of the following: (A) an heir; (B) a beneficiary; (C) a person named as Executor; or (D) a person named as Executor in the Will of the deceased.

(e) Self-Proved Will.

(1) Self-Proved Will Generally. In order to be declared valid in court, the Will's beneficiaries will be required to bring forth evidence of the validity of the Will. Each witness must attest that in the presence of each other and the Willmaker he/she witnessed: (1) the Willmaker was of full age, sound mind and memory; (2) Willmaker declared it to be his Last Will and Testament and (3) it was signed voluntarily. To simplify the process of proving a Will, the person making the Will may self-prove it at the time of execution or at a later time by signing an Acknowledgement of the Will statement.

(2) Acknowledgement Form. The acknowledgement must be attached to the Will in form and content substantially as follows, shall be signed by the person making the Will and the witnesses, and then shall be notarized.

Akwesasne Territory

Saint Regis Mohawk Tribe Reservation

State of New York

Acknowledgement of Signature on Will

We, _____________________, _____________________, the witnesses to the Will, and, being first duly sworn, do hereby declare to the undersigned authority that [name of person making Will] signed, declared and executed the document as his/her last Will and that he/she signed willingly or directed another to sign for him, and that he/she executed it as his/her free and voluntary act for the purposes therein expressed; and that each of the witnesses, in the presence and hearing of [name of the person making the Will], signed the Will as witness and that to the best of his/her knowledge [name of the person making the Will], was at the time eighteen (18) or more years of age, of sound mind and under no constraint or undue influence.

____________________________________

Witness

____________________________________

Witness

The aforesaid subscribing witnesses further state that this Acknowledgement was executed at the request of [WILLMAKER'S NAME], and that at the time of execution of this Acknowledgement, the original Will was exhibited to them and they identified it as such Will by their signature appearing as subscribing witnesses.

Subscribed, sworn to and acknowledged before me by ____________________ and _________________, the witnesses to the Will, this _______ day of _____________________, 20_____.

Signed

_______________________________________

Notary Public

(f) Non-conforming Wills.

Wills made prior to the adoption of this Ordinance and not in conformity with these requirements may be considered valid unless the Tribal Court determines, based on information provided by witnesses, that the Will is not entitled to be recognized due to fraud or some other infirmity that makes the will suspect or does not meet common law requirements for a will.

(g) Conveyances to Non-members are void.

Will provisions which bequeath real property to a non-member are void as to those provisions, and the subject real property shall pass in accordance with the intestate provisions of this Ordinance, but other personal property may pass as bequeathed.