## Facts

- Sarah Ellen Henneghan died on June 17, 2010, leaving an estate valued at about $273,134.
- Her sons, Gerald and Godfrey Henneghan, filed a joint petition in the D.C. Superior Court probate division to administer the estate as intestate.
- Gerald asserted that his mother’s purported will was invalid because it was not properly executed under D.C. law.
- Gerald submitted a photocopy of the purported will. The document showed the decedent’s signature and a notary seal, but it did not show signatures of two attesting witnesses.
- The probate court initially granted the intestacy petition and appointed Gerald and Godfrey as co-personal representatives, concluding the photocopied will was void under D.C. Code § 18-103 for lack of attestation by at least two credible witnesses.
- The next day, Donna Washington, a co-worker of the decedent who was named in the purported will to serve as personal representative, filed a petition for abbreviated probate and sought appointment as personal representative.
- Washington filed the original purported will. Like the photocopy, the original was signed by the decedent and notarized but did not include witness signatures.
- In place of witness signatures, Washington offered affidavits from four individuals who stated they had knowledge of the decedent’s signing of the document and her testamentary intent, even though they were not subscribing witnesses on the will.
- The probate court set aside the prior intestate appointments while it considered Washington’s petition.
- Relying on D.C. Code § 20-312 (abbreviated probate), the probate court admitted the will to probate and appointed Washington as personal representative, reasoning that affidavits could substitute for the missing witness signatures.
- Gerald appealed the order admitting the will to probate.

## Issues

1. Whether, in an abbreviated probate proceeding under D.C. Code § 20-312, a will that lacks the two-witness attestation required by D.C. Code § 18-103 may be admitted to probate based on affidavits from individuals who did not sign the will as attesting witnesses.

## Decision

- The District of Columbia Court of Appeals reversed the probate court’s order admitting the will to probate and remanded for further proceedings.
- The court held the document was not duly executed because it lacked attestation and subscription by at least two credible witnesses in the testator’s presence, as required by D.C. Code § 18-103.
- The court held D.C. Code § 20-312 streamlines proof in abbreviated probate but does not remove the substantive execution requirements of D.C. Code § 18-103.
- The court held affidavits from non-subscribing individuals could not supply the missing statutory witness signatures.
- Because the lack of two subscribing witnesses resolved the appeal, the court did not reach Gerald’s remaining arguments.

## Legal Principles

- Under D.C. Code § 18-103, a will is valid only if it is attested and subscribed in the testator’s presence by at least two credible witnesses.
- D.C. Code § 20-312 allows abbreviated probate to proceed without live testimony from subscribing witnesses when specified affidavit-based proof is provided, but it assumes the will was executed in a manner that satisfies § 18-103.
- Affidavits from persons who did not act as subscribing witnesses cannot cure the absence of the required witness attestation and subscription on the will itself.
- Execution formalities serve protective and evidentiary functions, including reducing the risk of fraud, undue influence, mistake, and uncertainty about whether the instrument reflects the decedent’s final testamentary intent.

## Conclusion

In re Estate of Henneghan holds that the abbreviated probate statute changes how due execution may be shown, not what due execution requires: a notarized instrument lacking the signatures of at least two attesting witnesses is not a valid will under D.C. Code § 18-103, and affidavits from non-subscribing individuals cannot substitute for the missing statutory witness signatures, so the probate court’s admission of the will was reversed and the matter remanded.


In re Estate of Henneghan, 45 A.3d 684 (2012)