Execution of Wills

Question 1

What are the three formal requirements for execution of a will?

Answer 1

1. Signed writing;
2. Witnesses; and
3. Testamentary intent.

Question 2

Writing Signed by Testator - Requirements

Answer 2

1. Entire will must be written/typed by the testator.
2. Location of signature:

• Some states: signature must be at end of the document.
• Other states + UPC: signature can be located on any part of the will, and if the signature is not at the bottom of the document, any words after the signature will not be given effect.

3. Capacity: testator must be at least 18 years old & sound of mind.
4. Form of Signature: formal signature not required, nicknames are okay as long as they indicate testator’s desire to sign.

Question 3

Witnesses - Presence

[General Rule]

Answer 3

Most states require that the will be signed in the presence of at least two witnesses.

Question 4

Do witnesses have to sign the will as well?

Answer 4

• Most Jurisdictions: Testator must sign or acknowledge the will in the presence of the witnesses; witnesses must sign in the presence of the testator.
• UPC: witnesses must sign within a reasonable time of the original signature by the testator.

Question 5

Witnesses - “In the Presence”

[Traditional vs. Modern Approach]

Answer 5

• Traditional Approach: “Line of Sight.” Witness and testator must observe or have the opportunity to observe the signing of the will.
• Modern Approach: “Conscious Presence.” Witness or testator must be aware the act is being performed, even if she cannot see it.

UPC: UPC adopts modern approach ONLY in situation where will is signed by another on behalf of the testator.

Question 6

What is an ‘interested witness’?

Answer 6

Interested witness is an individual who has a direct financial interest in the will.

Question 7

Common Law Approach - Interested Witnesses

Answer 7

At common law, interested witnesses were not competent to witness the will.

Question 8

Common Law Approach - Interested Witnesses

[Purge Theory & Exceptions]

Answer 8

Purge Theory. If a witness/witness’s spouse has a direct financial interest under the will, it does not affect the validity of the will BUT probate court will purge any gain in excess of what the witness would take under intestate succession.

Exceptions.

1. There were two other disinterested witnesses; OR
2. Interested witnesses would take a share under intestate succession AND interested witness takes the lesser of intestate share or bequest.

Question 9

UPC - Interested Witnesses

[Purge Theory & Exceptions]

Answer 9

Ha! You got it!

The UPC has abolished the interested witness doctrine!

Question 10

What is the third requirement for execution of a will?

Answer 10

The testator must have the present intent to make a testamentary transfer.

Question 11

What does ‘competency’ means for testator purposes?

Answer 11

1. At least 18 years old; and
2. Of sound mind.

Note: competency is measured at the time of the signing.

Question 12

What is a holographic will?

Answer 12

• An informal, handwritten will;
• that need not be witnessed;
• but does required a signature.

Question 13

Holographic Wills [UPC]

Answer 13

• UPC only requires that material provisions be in the testator’s handwriting.
• Additionally, UPC expressly authorizes looking to extrinsic evidence to establish testator’s intent.

Question 14

What are the common five types of will substitutes?

Answer 14

• Joint Tenancy (avoids probate because it has a right of survivorship)
• Revocable Trust (avoids probate because it is an inter vivos transfer)
• Pour-Over Will (avoids probate because it distributes property under a trust)
• Payable on Death [POB] Contract (avoids probate because it distributes by an inter vivos transfer)
• Deed (avoids probate because it is an inter vivos transfer)