1. Formalities (UPC)

Question 1

What is required for testamentary capacity?

Answer 1

1) At least 18 years old

2) Sound mind when making the will

Question 2

What is required for testamentary intent?

Answer 2

Present intent to make will (not future)

Unclear intent but intent to dispose upon Testator’s death

Conditional intent (court may allow as mere express motive to make will)

Parol evidence/extrinsic evidence to clear ambiguities/sham will (otherwise property passes by intestate or perceived dispositive plan)

Question 3

What is required for written will?

Answer 3

1) Signed by Testator/another (in T’s direction + presence)

2) Signed either;
- Anywhere (most states + UPC)
- At the end (some states); Void after signature (some states)

3) Written;
- Typed
- Holographic (T’s signature + material provisions in T’s handwriting)

Question 4

What is required for Testator’s signature in Witnesses’ presence?

Answer 4

In presence of 2 Witnesses
- NOT via telephone/computer

Conscious presence test (most states)

1) Each W conscious of parties’ actions + locations
2) Within parties’ general awareness

Scope of vision test (few states)

1) Each W was in close proximity
2) Each W could have observed T’s signature

Question 5

What is required for Witnesses’ signature?

Answer 5

1) At least 2 attesting Ws with capacity

2) In T’s presence

Question 6

What happens if Witness is also Beneficiary?

Answer 6

Will is valid

• Other Witnesses in the will
• W-B would receive T’s share as T’s heir by intestate anyway (W-B’s share gets added to T’s total intestate property regardless of residuary clause => W-B gets equal share from T’s intestate property)
• But W-B legacy not valid (all states) => W-B’s share gets added to residuary estate or intestate

Will is NOT valid (common law)

Question 7

Which law applies towards executing a foreign will?

Answer 7

Probate administering state

Execution state

T’s domicile at execution

T’s domicile at death