Creation of a Will

Question 1

What must an individual do to create a Will?

Answer 1

To create a Willin New York, an individual must

1. possess testamentary capacity
2. Possess testamentary intent
3. Follow required formalities

Question 2

What is required for testamentary capacity?

Answer 2

• In NY to be valid, a testamentary instrument must be made by someone who is:
  
  1. @ least 18 years old
     
     • For minors - even if a minor ratify the Will after they turn 18, it is not valid. Have to re-execute the Will ***
  2. Person has to be of sound mind
     
     • applies @ the time the testamentary act is being performed

Question 3

What are the elements to determine if there is capacity?

Answer 3

1. Testator understands the nature & extent of his property
   
   • general idea of what you pwn
2. Who are the natural objects of the testator’s bounty
   
   • basic idea of who relatives, close friends, etc. are
3. Nature of the testamentary acts and the particular dispositions being made
   
   • understand what the document you are signing is
4. How these elements relate to create an orderly plan for disposition of property @ death

Question 4

What is the standard for testamentary capacity?

Answer 4

• lower for most other legal act except getting married is even lower

Question 5

How does dementia, drugs & alchohol effect testamentary capacity?

Answer 5

• A person who is incompetent due to dementia, alcohol or drugs can still execute a Will so long as they were lucid at the time of execution
• NOTE - There is a rebuttable pressumption that the testator is competent if the Will if appears valid on its face when executed
  
  • The will contestant has the burden of proving that the pressumption is oversome.
  • Evidence relating to the testator’s conduct before & after the execution, including stateents, is admissible to determine competency at the time the will was made