Creation of a Will

Question 1

How do you execute a will?

Answer 1

The will must be in writing, signed by the testators, and witnessed by two witnesses. They also require that the testator is 18 years old or older and has the intent that the document is his will.

Question 2

What are signatures?

Answer 2

Signatures are any mark that is made with intent to adopt the will.

Question 3

What is a proxy signer

Answer 3

Another person may sign a testator’s will in the testator’s place.

Question 4

What are the tests to determine proxy signers?

Answer 4

The conscious presence test and the line of sight test.

Question 5

What is the conscious presence test?

Answer 5

The UPC and majority of the states state that the proxy must sign at the testator’s direction and in his conscious presence

Question 6

What is the line of sight test?

Answer 6

The line of sight test states that a proxy’s signature is valid only if the testator can see the proxy signature

Question 7

What is the substantial compliance rule?

Answer 7

Some states adopt the substantial compliance rule where if the execution of a will substantially complies with the formalities, ti will be validated.

Question 8

What is dispensing power?

Answer 8

The UPC adopts the “dispensing power” where a court can validate a will so long as there is clear and convincing evidence that the decedent intended the document to be her will, even if the formalities of the wills statute are not met.

Question 9

What are holographic wills

Answer 9

Holographic wills are unwitnessed wills

Question 10

What are the requirements for holographic wills?

Answer 10

In some states and under the UPC, the holographic will must be signed and the material portions must be in the testator’s handwriting.

Question 11

For holographic wills, where must the signature be?

Answer 11

Courts have held that when a statue requires a will to be subscribed, the testator’s signature must appear at the end of the will.

Question 12

What is an interested witness?

Answer 12

An interested witness is a witness to the will who receives property under the will.

Question 13

What is the interested witness rule at common law?

Answer 13

At common law, it a will is not witnessed by two disinterested witnesses, the will was invalid.

Question 14

What is the modern state law for interested witnesses?

Answer 14

Under all state laws, the will is still valid if the will is not witnessed by two disinterested witnesses. Some states say that an interested witness may not take bequest.

Question 15

What are the exceptions to the interested witnesss rule under modern state law?

Answer 15

(1) If it’s witnessed by three or more persons and it would be valid without the interested witness, the interested witness may still take the gift; (2) If the will was republished by a codicil and disinterested witnesses witnessed the codicil, then the interested witnesses may still take the gift; (3) if the interested witness was also an heir of the testator, the witness would forfeit only so much of the bequest as exceeds what is share would be.

Question 16

What is the interested witness rule under the UPC?

Answer 16

There is no rule barring an interested witness from taking a bequest.

Question 17

When is a multi-page will valid?

Answer 17

If the person trying to prove the validity can show that all pages were physically present when it was signed and each page was intended to be signed by the testator.

Question 18

What is a codicil?

Answer 18

A codicil is a supplement to a will that modifies it, adds to it, explains it or revokes it.

Question 19

When. must a codicil be executed?

Answer 19

A codicil must generally be executed in the same manner as the will.

Question 20

What are the effects of a codicil?

Answer 20

It republishes the will, if it’s a valid will to begin with, and it controls.

Question 21

If the codicil is inconsistent with a will, what controls?

Answer 21

The codicil.

Question 22

What does the effect of revocation have on a codicil?

Answer 22

Revoking a will revokes all codicils, but revoking a codicil does not revoke the will.

Question 23

What is incorporation by reference?

Answer 23

A writing that is not valid as a will, may be incorporated by reference into a will if the will manifests an intent to incorporate the writing and the writing is identified with reasonable certainty. The writing must exist at the time the will is executed.

Question 24

Can a testator dispose of tangible personal property?

Answer 24

Yes, if there is a signed memorandum. It does not matter if it was prepared before or after the will.

Question 25

How can you execute a contractual will?

Answer 25

Ordinarily, contracts to make a will must be in writing.

Question 26

What is the UPC approach for contractual wills?

Answer 26

Existence of a joint will does not establish the existence of a contract. Contract may be establish (1) by provisions of the will stating material portions of the contract (2) express reference in a will to a contract and (3) writing signed by the decedent evidencing the contract.

Question 27

Who has the power to revoke a contractual will?

Answer 27

If two testators have executed contractual wills, either may revoke it if notice is giving during their lifetime.

Question 28

What are conditional wills?

Answer 28

If a testator intended that the will be valid only upon the happening of a condition precedent the will is operative only if the testator fails to return or survive.

Question 29

How does one determine a conditional will?

Answer 29

You can look to the motive, inducement or time the conditional will was made.