Execution of Wills Flashcards
1
Q
What are the three formal execution requirements?
A
- Signed writing
- Must be written or typed and signed by testator.
- UPC does not allow oral.
- In some states, must be at bottom. In others, and UPC, can be on any party, as long as it was intended to be here signature, BUT anything below signature will not be given effect.
- Must be at least 18 and of sound mind.
- Formal signature not required. - Witnesses
- At least 2. Must also sign.
- In most jurisdictions: testator signing must be in the presence of the witnesses, and witnesses must sign in presence of testator. UPC: only within a reasonable time.
- Presence = line of sight or conscious presence (two different views)
- Must be disinterested (no financial interest).
- Purge theory: Will not affect will if interested signers, but will purge any gain in excess of what the witness would take under intestate succession. Two exceptions to this, there were two disinterested witnesses as well or interested witness would take a share under intestate succession and interested witness takes the lesser of intestate share or bequest.
- UPC abolished interested witnesses doctrine. (no purge theory) - Testamentary intent
- Present intent.
2
Q
What happens when there is a failure to satisfy the formalities?
A
Common law (majority) - Strict compliance
UPC and minority rule
- Substantial compliance. Clear and convincing evidence that descendent intended the document to serve as will.
3
Q
What is a holographic will?
A
Informal, handwritten will, which need not be witnessed
To be valid, must be signed.
In some jurisdiction: any markings that are not testator’s handwriting invalidate will. In UPC: only requires material provisions be in testator’s handwriting.
Look for words of intent.
4
Q
What are the special rules for a codicil?
A
Must be executed with the same formalities of will.
5
Q
What are will substitutes?
A
Joint Tenancy (avoids probate) Revocable trust Pour-over will POD Contract Deed
