Chapter 4: Execution of Wills

Question 1

What are formalities for an attested (witnessed) will?

Answer 1

1. Signature
2. Capacity
3. Witnesses
4. Intent

A will does not require a date

In NC strict compliance with the formal requirements of a will is required.

Question 2

What are the formalities for signature of an attested will?

Answer 2

Signature: must be signed by T or signed for her in her presence and at her direction. Line of sight test.

Question 3

What are the formalities for capacity of an attested will?

Answer 3

Capacity: must be at least 18 and have testamentary capacity: (1) T must know the natural objects of her bounty; (2) T must know the kind, nature, and extent of her property; (3) T must know the manner in which she desires her act to take effect; and (4) T must know the effect of her act will have on her estate.

Question 4

What are the formalities for witnesses of an attested will?

Answer 4

Witnesses: do not need to see T sign as long as T acknowledges her previous signature. NC requires at least 2 competent witnesses. Competency determined at the time of signing. A witness can be “interested” and take under the will, so long as there are at least 2 disinterested witnesses; if not interested witness doesn’t take under the will. The rest of the will is valid.

Question 5

What are the formalities for intent of an attested will?

Answer 5

Intent: testamentary intent: must u/s that she is signing a will and intend it to have the effect of a will. (2) she must know and approve of the contents of the will.

Question 6

The doctrine of integration

Answer 6

All pages found with a will and intended to be part of the will are considered part of the will. There is no need to sign each page.

Question 7

Requirements for a valid holographic will

Answer 7

1. Written entirely in T’s handwriting. If there are other words (not in T’s handwriting) or printed matter that do not change the meaning of the handwritten words that does not make the will invalid. Entire will must be in T’s handwriting.
2. Subscribed by the T either with signature or name written in T’s handwriting
3. Found after T’s death w/ T’s valuable papers or effects, where safe papers are kept, or in custody of another where T had deposited it for safe keeping.

No witnesses required
There must be clear testamentary intent

At probate a holographic will requires: (1) the testimony of at least 3 competent witnesses that the will is written in T’s handwriting; and (2) the testimony of at least 1 witness that the will was found after the T’s death among valuable papers or effects, or otherwise in a place of safekeeping.