Execution of Ordinary Wills Flashcards
What is a will?
A document executed by a testator or testatrix that takes effect at the testator’s death
A will may dispose of property or include provisions for appointing an executor, nominating a guardian, revoking another will, or excluding rights to property.
What are the four categories of questions pertaining to testate succession?
- Making a will
- Revoking a will
- Challenging a will
- Comprising and construing a will
What are the three types of wills?
- Attested or formal will
- Holographic will
- Oral will (nuncupative will)
What are the three requirements for all wills?
- Testamentary capacity
- Testamentary intent
- Appropriate formalities
What is the minimum age to execute a valid will in most states?
18 years of age or older
What constitutes ‘sound mind’ for a testator?
Ability to understand the nature, condition, and extent of property; the disposition being made; and the relationship to beneficiaries
Eccentric behavior does not necessarily render a testator mentally incapable.
What is an ‘insane delusion’?
An irrational belief with no basis in fact or reality
What is required for testamentary intent?
The testator must intend that the particular document be their will at the time of execution
What are the three concepts that can prevent testamentary intent?
- Undue influence
- Fraud
- Mistake
What is ‘undue influence’ in the context of wills?
Influence that overcomes the testator’s free will, resulting in a donative transfer not intended by the testator
What creates a presumption of undue influence?
- The alleged wrongdoer was in a confidential relationship with the donor
- Suspicious circumstances surrounding the will’s execution
What is ‘fraud in the execution’?
Fraud regarding the nature or contents of the will itself that invalidates the will
What is ‘fraud in the inducement’?
Fraud concerning intrinsic facts that induces the testator to take action affecting the distribution
What happens if fraud is alleged regarding only part of a will?
The court may reject that part and admit the rest to probate
What are the two types of mistakes that can affect a will?
- Mistake in execution
- Mistake in inducement
What are the formal requirements for a valid attested will?
- In writing
- Signed by the testator
- Witnessed or attested/acknowledged
What does ‘conscious presence’ mean in the context of a will’s signature?
The testator must be aware of the signing, which can include being within earshot
What is the ‘harmless error rule’?
A law that validates any attempt to make a will if there is clear and convincing evidence of the testator’s intent
What is an ‘interested witness’?
A witness who is also a beneficiary of the will
Does the signing of a will by an interested witness invalidate the will?
No, but it may purge the interested witness’s share in some states
What is a ‘self-proving will’?
A will that proves itself and satisfies all execution requirements without needing witness testimony
What is the result if a will is completely tainted by fraud?
All property will pass by intestacy
What happens if a mistake is made in the execution of a will?
The will is invalid
What is the integration rule regarding wills?
Any papers present at execution intended to be part of the will will be considered part of the will
What does the term ‘proving’ of a will refer to?
The process by which the testator’s signature and other formalities are established.
What is a self-proving will?
A will that proves itself and satisfies all execution requirements without the need for testimony of attesting witnesses.
What is the advantage of a self-proving will?
It avoids the cost and difficulty of hostile or unavailable witnesses during the probate process.
Under what condition will the self-proving will process not apply?
If there is evidence of fraud or forgery affecting the acknowledgment or affidavit.
What is required for a will to be made self-proved at execution?
Simultaneous execution and attestation by acknowledgment of the testator and affidavits of the attesting witnesses.
What is a self-proving affidavit (SPA)?
An affidavit made before an officer authorized to administer oaths, evidencing the acknowledgment of the testator and attesting witnesses.
What is needed for a will to be made self-proved after its execution?
Acknowledgment of the testator and affidavits of the attesting witnesses made before an authorized officer.
Fill in the blank: A self-proving will is evidenced by the officer’s _______.
certificate, under official seal.
