Components of a Will

Question 1

What must the will proponent show if an integration question is raised?

Answer 1

The the pages were present when the will was executed and intended by the testator to be part of the will
* Integration presumed when pages are physically attached or there is internal coherence by provisions running from one page to the next
* Think of this as a “paper clip” rule (i.e., use a stapler instead)

Question 2

What is the doctrine of republication by codicil?

Answer 2

Dictates that a will is treated as having been executed on the date of the last validly executed codicil thereto
* To be valid, codicil must be executed with same testamentary formalities as will
* Watch for interaction with other rules (e.g., pretermitted child may not be pretermitted if born before codicil)

Question 3

What is incorporation by reference?

TESTED

Answer 3

Allows the testator to incorporate an extraneous document into their will (e.g., a notecard in a safe)
* Effect is that content of extraneous document treated as though written into will itself even if the document was not witnessed or informally written in handwriting

Question 4

How does one incorporate a document by reference?

Answer 4

Need all three:
* (1) Document must be in existence at the time will was executed
* (2) Will must refer to document as being in existence; AND
* (3) Will must identify and describe the document with reasonable certainty

NOTE that previously invalid documents through incoropration by reference (e.g., missing one of elements above in initial will) could become valid as a result of properly executed codicil

Question 5

What exceptions exist for incorporation by reference?

Answer 5

(1) List disposing of items of tangible personal property
* May be prepared before or after the will’s execution and may be altered by testator at any time
* Need not be witnessed, but must be signed by testator and describe items and beneficiaries with reasonable certainty

(2) Instructions to Fiduciary as to Exercise of Discretionary Powers
* Letter to fiduciary as to how discretionary power should be interpreted
* Can be written before or after execution of will, trust, or POA, but must be signed and notarized

Question 6

Describe the importance of acts of independent significance provisions in a will

Answer 6

Will may dispose of property by reference to acts and events that have significance apart from their effect on the dispositions made by the will
* Act must have some other lifetime significance or motive aside from providing for the testamentary gift
* Example–T executes will leaving $10,000 to every person working for him on the date of his death