Execution of Wills Flashcards
What constitutes a will?
instrument executed with formalities and directs estate distribution.
It is revocable.
Codicil
Supplement to a will & modifies it
Testamentary Intent
Testator must have PRESENT intent for an instrument to act as his will.
If not clear then
1) intended to dispose of property
2) intended to dispose upon death
3) intended the instrument to accomplish the disposition
Conditional Wills
Operative only if stated condition is satified
IF condition looks like merely a motive for making the will then court may not apply even if condition occurs
Testamentary Capacity
must be 18 years old and of sound mind at time of making will
Formalities of a valid will or codicil
1) signed by T
2) two attesting witnesses
3) T’s signature or acknowledgement of in each of the witnesses presence
4) witnesses sign in T’s presence
5) T signs at the end of the will
6) T publishes the will (declares to W’s)
7) W’s sign in presence of each other
UPC Witnesses
Can be attested by two competent W’s
or
signed by a notary
Testators Signature
Any mark made with the intent to operate as signature
can be made by another person at request of T in T’s presence
UPC valid if signed anywhere, not just at the end
NON-UPC - void some courts others valid up until signature and not afterward
Conscious Presence Test
Most courts - each party was conscious of where the other parties were and what they were doing. signings took place withing the general awareness and cognizance
Scope of Vision Test
Minority - such close proximity that he could have seen the signing had he looked
Interested Witnesses
CL - W who is a beneficiary is no competent to be a W
All states - W still valid but the bequest to interested W may be void unless W would take if will not probated
UPC - no problem
Attestation Clause
Recites elements of due execution and is prima facie evidence of those elements
Self - Proving affidavit
recited all the element of due execution and is sworn by T and W’s before a notary. No need for W’s in probate court.
UPC - Harmless Errors
If some formalities are absent, will can still be effective if established by clear and convincing evidence of T’s intent for instrument to be will
Holographic Wills
UPC + majority - entirely in T’s handwriting and not no W’s. Needs T’s signature anywhere on document.
