Execution and Revocation of Wills

Question 1

codicil

Answer 1

supplement to a will that modifies it

Question 2

testamentary intent

Answer 2

• testator must have present intent that the instrument operates as his will
• parol evidence is admissible to show that an instrument was not meant to have any effect

Question 3

When it is not clear whether an instrument was intended to be testamentary, testamentary intent will be found only if it is shown that the testator:

Answer 3

(i) intended to dispose of the property;
(ii) intended the disposition to occur only upon his death; and
(iii) intended that the instrument in question accomplish the disposition

Question 4

conditional wills

Answer 4

• one that provides that it is to be operative only if a stated condition is satisfied
• A court might interpret what appears to be a condition as merely expressing the motive for making the will, and might give the will effect even if the condition does not occur
• Parol evidence not admissible to show meant to be conditional will

Question 5

testamentary capacity

Answer 5

Testator must be at least 18 years old and of sound mind at the time he makes the will.

Question 6

For execution of attested wills, most states require:

Answer 6

(i) Signed by testator (or by another at testator’s direction and in her presence)
(ii) Two attesting witnesses
(iii) Testator signs will in presence of witnesses
(iv) Witnesses sign in testator’s presence

Question 7

Under the UPC, a will is valid if it is signed by two competent witnesses or

Answer 7

it is signed by a notary.

Question 8

conscious presence test (majority)

Answer 8

The presence requirement is satisfied if each party was conscious of where the other parties were and what they were doing, and the act of signing took place within the general awareness and cognizance of the other parties.

Question 9

scope of vision test (minority)

Answer 9

Presence requirement satisfied only if the person was in such close proximity that he could have seen the signing had he looked

Question 10

interested witnesses

Answer 10

All states: will still valid, but bequest to interested witness may be void unless she would have taken a share if the will had not been probated
UPC: gifts to interested witnesses not purged

Question 11

holographic will

Answer 11

• one that is entirely in the testator’s handwriting and has no attesting witnesses
• must contain testator’s signature, but it need not be at the end of the will
• recognized by UPC and majority of the states
• most states that recognize give effect to handwritten changes made by testator after will is completed

Question 12

If changes are made to an attested will in the testator’s handwriting and the jurisdiction recognizes holographic wills, what effect?

Answer 12

If the requirements are met, these changes are often construed as a valid holographic codicil.

Question 13

With respect to personal property, the validity and effect of a will are determined by the law of

Answer 13

the testator’s domicile at the time of death

Question 14

Under the law of many states and the UPC, a will is admissible to probate in a jurisdiction if the will has been executed in accordance with the law of:

Answer 14

(i) that jurisdiction,
(ii) the state where the will was executed,
(iii) the testator’s domicile at the time of the will’s execution, or
(iv) the testator’s domicile at death

Question 15

integration

Answer 15

physical attachment, internal coherence of pages, or an orderly dispositional plan raise a presumption that the pages were present and intended to be part of the will when it was executed (can also be proved by testimony or other extrinsic evidence)

Question 16

A codicil modifies a previously executed will and must itself

Answer 16

be executed with the same formalities.

Question 17

doctrine of republication by codicil

Answer 17

a will is treated as having been executed on the date of the last codicil

Question 18

Any addition, alteration, interlineation, or deletion made after the will has been signed and attested is ineffective to change the will, unless

Answer 18

the will is reexecuted with proper formalities (or the changes qualify as a holographic codicil where such codicils are recognized)

Question 19

A document may be incorporated by reference into a will, provided:

Answer 19

(i) it is in existence at the time of execution;
(ii) it is sufficiently described in the will; and
(iii) the will manifests an intent to incorporate the document

Question 20

A properly executed codicil usually incorporates by reference a prior defective will, thereby

Answer 20

validating the instrument.

Question 21

acts of independent significance

Answer 21

A will may dispose of property by reference to acts and events, even though they are in the future and unattested, if they have significance apart from their effect on dispositions made by the will.

Question 22

power of appointment

Answer 22

an authority granted to a person, enabling that person (the donee of the power) to designate, within the limits prescribed by the creator of the power, the persons who shall take the property and the manner in which they shall take it

Question 23

general power of appointment

Answer 23

a power exercisable in favor of the donee himself, his estate, his creditors, or the creditors of his estate

Question 24

special power of appointment

Answer 24

a power exercisable in favor of a limited class of appointees, which class does not include the donee, his estate, his creditors, or the creditors of his estate

Question 25

pretermitted children statutes

Answer 25

if the testator fails to provide in his will for any child born or adopted after execution of the will, the child takes an intestate share

Question 26

revocation by written instrument

Answer 26

• all or part of a will may be revoked or altered by a subsequent instrument executed with the same formalities of a will
• if the subsequent testamentary instrument does not expressly revoke the earlier will, the two are read together, with the later instrument revoking the earlier only to the extent of inconsistent provisions

Question 27

revocation by physical act

Answer 27

• a will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will with the intent to revoke
• intent must be concurrent with the act
• physical act may be performed by another if done at the testator’s direction and in his presence

Question 28

doctrine of dependent relative revocation

Answer 28

-applies when a testator revokes his will under the mistaken belief that another disposition of his property would be effective, and but for this mistaken belief, he would not have revoked the will

Question 29

Integration of a will is the process of

Answer 29

embodying several sheets of paper or documents into a single, entire will, validated by a single action of execution.

• The will proponent must show that the pages were present when the will was executed and were intended by the testator to be a part of the will.
• The requirements of intent and presence are presumed when: there is a physical connection of the pages, there is an internal coherence by provisions running from one page to the next, or the pages, when read together, set out an orderly dispositional plan.
• Witness testimony and other extrinsic evidence are admissible to prove integration requirements.