2. Will Validity

Question 1

New York law considers a will valid if it complies with:

Answer 1

1. New York Law,
2. Law Where executed, or
3. Law of Decedent’s domicile at Death or when will executed.

Question 2

What law governs the construction and application of admissible will’s provisions if the will was executed in accordance with the laws of another state?

Answer 2

Once the will is admitted to probate, New York law governs construction and application of its provisions.

Question 3

Requirements of a valid will:

Answer 3

1. Legal Capacity
2. Testamentary Capacity — Sound Mind
3. Testamentary Intent
4. Formalities

Question 4

Age of legal capacity to execute a will:

Answer 4

18 years

Question 5

Elements of testamentary capacity:

Answer 5

1. Understand the action (Must understand the business in which the testator is engaged, e.g., making a will.)
2. Comprehend the effect of the action (Comprehend Effect of the Action)
3. Know the general nature and extent of property (Must understand the general nature and extent of property; exact knowledge is not needed.)
4. Recognize natural objects of bounty (Must know family situation and the claims against him, e.g., know who spouse and children are.)
5. Understand the dispositions (Must be able to understand the gifts the testator is making in the will.)

Question 6

May mentally challenged individuals execute a will?

Answer 6

Mentally challenged individuals can make a will as long as they meet the five elements of testamentary capacity.

Question 7

What effect does adjudication of incapacity have on on’e ability to execute a will?

Answer 7

Adjudication of incapacity raises rebuttable presumption of lack of testamentary capacity.

A person adjudicated incompetent may be able to executed a will during a “lucid interval.”

Question 8

What is necessary to prove testamentary intent?

Answer 8

Testator must intend the very instrument executed to be the will.

Question 9

What formalities are required for a valid will?

Answer 9

1. In writing
2. Signed by the testator
3. Testator or proxy subscribes
4. In the presence of each witness, the testator must either (1) sign the will or (2) acknowledge a prior signature.
5. Testator must publish the will
6. Attestation (Witnessing)
7. Execution ceremony must be completed within 30 days from when the first witness signs.

Question 10

What is required of a signature?

Answer 10

A signature is any mark made with present intent to authenticate the will.

Question 11

Proxy signatures allowed if:

Answer 11

(1) in the testator’s presence,
(2) by the testator’s direction,
(3) proxy signs the testator’s name,
(4) proxy is not a necessary attesting witness, and
(5) proxy writes proxy’s address (but failure to do so does not invalidate the will)

Question 12

Where must the testator or proxy sign a will?

Answer 12

At the end, because any material after the signature is ineffective.

Question 13

How is a will published?

Answer 13

The testator must communicate to the witnesses that they are witnessing a will (and not some other legal document).

Question 14

How may witnesses are required?

Answer 14

Two

Question 15

Must the witnesses sign in each other’s presence?

Answer 15

No

Question 16

Must the witnesses sign in the testator’s presence?

Answer 16

No

Question 17

What is the general rule for an interested witness?

Answer 17

Beneficiary’s gift is void but otherwise the will is valid.

Question 18

When will an interested witness be exempt from the general rule?

Answer 18

1. Supernumerary (extra) Witnesses to Will -
   Beneficiary receives gift as provided in the will this person’s attestation is not needed to probate the will.
2. Beneficiary also an Heir
   Beneficiary receives smaller of: (1) intestate share, and (2) gift under the will.

Question 19

What is an attestation clause?

Answer 19

An attestation clause is not required but may act as prima facie evidence that all will formalities were satisfied. It does not substitute for the witnesses’ testimony at the time of probate.

Question 20

What is a self-proving affidavit?

Answer 20

The testator and witnesses sign an affidavit swearing under oath in the presence of an attorney that the requirements for a valid will were satisfied.

Question 21

What is the purpose/function of a self-proving affidavit?

Answer 21

In uncontested cases, the SPA removes the requirement that the witnesses come into court to testify and thus probate is faster and cheaper.

Question 22

Who has the burden of proving the will?

Answer 22

The proponent of the will has the burden of proving that the testator duly executed the will.

Question 23

How is dues execution shown if a will lacks a self-proving affidavit or it is contested, and both witnesses are available?

Answer 23

If both witnesses are available

Both witnesses must testify.

Question 24

How is dues execution shown if a will lacks a self-proving affidavit or it is contested, and one witness is not available to testify?

Answer 24

The testimony of one witness suffices if the other witness is dead, absent from the state, incompetent, or cannot with due diligence be found.

Question 25

How is dues execution shown if a will lacks a self-proving affidavit or it is contested, and both witnesses are unavailable?

Answer 25

The will proponent must prove the signatures of the testator and one witness.

Question 26

What is a holographic will?

Answer 26

A will entirely in the testator’s own handwriting and not witnessed.

Question 27

What is a nuncupative will?

Answer 27

An oral will.

Question 28

How are holographic or nuncupative wills treated in NY?

Answer 28

Holographic wills and nuncupative wills are not recognized unless validated under the savings statute.

Question 29

What exceptions allow or holographic or nuncupative wills in NY?

Answer 29

1. Members of the armed forces during declared or undeclared war, but are void one year after the person’s discharge.
2. Mariners at sea, but are void three years after discharge.

Question 30

Larry Lawyer prepared a will for Tina leaving her entire estate to her friend, Flora, and supervised the will’s execution. Tina signed the will and had to rush back to work. Later that day, Larry Lawyer had his law assistant and secretary sign as witnesses. On Tina’s death, the will is denied probate, and her estate passes by intestacy. Does Flora have a cause of action against Larry Lawyer for negligence, the recovery being the amount she would have taken had the will been validly executed?

Answer 30

No, because there is no privity of contract between Larry and Flora.

Question 31

May an attorney be liable for malpractice to a personal representative?

Answer 31

If attorney’s malpractice caused financial loss to the estate, the attorney may be liable.
Basically, this is a survival action for a tort recovery.