Execution of Wills

Question 1

What is required for a validly executed will?

Answer 1

1. Signed by testator
2. Two attesting witnesses
3. Each witness must sign in testator’s presence

Question 2

What is a codicil?

Answer 2

A later amendment or supplement on the same will

Question 3

What is necessary for a valid codicil?

Answer 3

Same as a will:

1. Signed by testator
2. Two attesting witnesses
3. Each witness must sign in testator’s presence

Question 4

What is NOT required for IL?

Answer 4

1. Testator sign “at the foot or end” of the will
2. That the witnesses know they are witnessing a will (no “will publication” requirement)
3. That the witnesses sign in EACH OTHER’S presence

Question 5

Tess types a will that disposes all her property. She takes the will across the street to Ned’s house and asks him to witness, and he signs. Tess’s signature was barely legible. Tess then takes it to Oliver, her other neighbor. Oliver thought he was signing a power of attorney. Is this a validly executed will?

Answer 5

Yes, signed by testator, witnesses don’t have to sign in the same room, just contemporaneous. Two witnesses signed after testator, in testator’s presence.

Question 6

What constitutes “in the testator’s presence” majority rule?

Answer 6

Under the conscious presence, doesn’t need to see the witness sign, just testator needs to be conscious of where they are and what they are doing

Question 7

What constitutes “in the testator’s presence”Illinois rule?

Answer 7

Witnesses must be in Testator’s line in sight, testator does not have to see witnesses sign, but the witnesses must be within the uninterrupted scope of testator’s vision when they sign. Swivel chair ok

Question 8

Can an attorney be held liable for the negligent preparation of a will?

Answer 8

Yes, there is no privity of contract defense in IL

Question 9

Will includes these provisions: “I give $30,000 to my faithful nurse Nell, and the rest of my estate to my sister Sue. I appoint Hobie Gates as executor” Nell and Hobie are the attesting witnesses to the will. Can the will be admitted to probate when Nell is both a beneficiary and attesting witness?

Answer 9

Yes

Question 10

Will an interested witness situation ever affects validity of the will?

Answer 10

No, may effects the legacy though

Question 11

When won’t the beneficiary-witness lose its legacy?

Answer 11

1. If there are two other disinterested witnesses OR

2. You’re an heir anyway -> Whichever is least rule

Question 12

What happens if there’s a witness-beneficiary and no disinterested witnesses? (The whichever is least rule?)

Answer 12

witness-beneficiary would take a share of the estate if this will were not admitted to probate, in which case she takes the esser of (i) bequest given by the will or (ii) intestate share (or legacy under an earlier will revoked by this one)

Question 13

So, if Nell would have been T’s heir if T left no will, Nell would take the lessor of (i) $30,000 bequest or (ii) intestate share, whichever is less. What if Nell was not an heir, would he take the bequest?

Answer 13

No, under IL law Nell wouldn’t get anything b/c he was a beneficiary witness, and no exceptions apply

Question 14

What about Hobie (the named executor and attesting witness)? Is he entitled to compensation under the Illinois interested witness statute?

Answer 14

No, its denied by statute.
Note: IL no-compensation rule applies ONLY to the executor who signs the will as an attesting witness. Does NOT apply if bank is named executor and bank employee is attesting witness.

Question 15

So, in this case, not Nell the nurse but Norman Testator’s husband, was one of the attesting witnesses. Does this interested witness take under the will in the majority rule?
Under the Illinois interested witness statute?

Answer 15

Yes, under majority rule Norman can still take. However, under IL interested witness statute the husband’s legacy is void.

Question 16

What does the Uniform Probate Code say about interested witnesses?

Answer 16

They don’t care, it doesn’t invalidate the will or codicil.

Question 17

What are holographic wills? Are they valid in IL?

Answer 17

They are handwritten and signed wills, and not witnessed. These are NOT valid in IL

Question 18

What about foreign holographic wills?

Answer 18

If the holographic will is recognized in the state that its made, its admissible to probate in IL.

Question 19

Does IL admit oral wills ever?

Answer 19

NO.

Question 20

what is a conditional will? When will it be held valid?

Answer 20

Its a will that includes a condition upon which the executor should make bequests. Based on whether the condition occurred, and motive or inducement for making a will.

Question 21

Ted writes a will that is properly signed and witnessed: “I am going on a mountain-climbing expedition to the Himalayas. If anything happens to me on the trip, I leave all my property to my good friend, Alice Adams.” Ted climbs Mt. Everest that summer, returns from the trip in July, and dies three years later without having changed his will, which is found in his desk drawer. Does Alice take Ted’s estate under the will?

Answer 21

Argue both ways:
Was this a conditional will meaning that probate should be denied because the condition did not occur?

Or did Ted’s reference to the dangerous trip merely reflect the motive or inducement for making a will?