Execution of Wills Flashcards
What are the elements of a will?
(1) Capacity; (2) Testamentary Intent; (3) At least 2 witnesses; (4) In writing; (5) Signed by testator or agent
What are the requirements for capacity to make a will?
Testator must be (1) at least 18 years old; (2) of sound mind; (3) What, Who, How of Disposition (Nature of the act, nature and character of his property, natural objects of his bounty, and plan of attempted disposition).
What is testamentary intent?
The testator must understand he is executing a will and intend for it to have testamentary effect, and must generally know and approve of its content.
What are the requirements for witnesses to a will? (Majority and UPC)
Majority: Will must be signed in the joint presence of and attested to by 2 witnesses.
UPC: The witnesses do not have to be present at the same time, testator does not have to sign in their presence so long as he acknowledges his signature to them before they sign and they sign within reasonable time, and each witness must have sufficient mental capacity and maturity
What are interested witnesses?
Witnesses who have a financial interest in the will
Are interested witnesses valid witnesses? (CL, modern trend, UPC)
CL: No, an interested witness that was a necessary witness (one of 2) will invalidate the will
Modern: Sometimes. Many states invalidate the portion of the will that provides an excess portion to the interested witness
UPC: Yes
If a will does not follow the will formalities, is the will invalid? (CL and UPC)
CL: Strict compliance with the will formalities is required
UPC: Substantial compliance is sufficient so long as there’s clear and convincing evidence that the testator intended for the document to serve as his/her will
Note for MEE: Discuss both if an issue
What is a holographic will and what are its requirements?
Holographic will: Handwritten will
Requirements:
(1) Handwrite “material provisions” of will (beneficiaries of will and items they will receive);
(2) T’s signature;
(3) T’s testamentary intent
No witness requirement
What is a codicil and what are its requirements?
Codicil: Supplement to a will that alters, amends, or modifies the will rather than replacing it
A codicil must be executed with the same formalities as a will (whether attested or holographic)
What is the effect of a codicil on a will’s publication date?
A validly executed codicil republishes a will as of the date of the codicil
Can a valid codicil cure an invalidly executed will?
Yes, so long as the codicil incorporates the will by reference
Can a holographic codicil amend a validly attested will?
Yes
What are 5 will substitutes and what is the advantage of a will substitute?
1) Joint Tenancy w/ Right of Survivorship
2) Revocable Trust (avoids probate because it is an inter vivos transfer)
3) Pour-Over Will (the will provides that the decedent’s probate property transfers to his/her inter vivos trust upon death)
4) POD Contract/Life Insurance (avoids probate because it distributes as an inter vivos transfer)
5) Deed (testator can give deed to agent who then transfers deed upon testator’s death)
What does “in the presence” mean for purposes of the will formalities? (traditional and modern approach)
Traditional: Line of Sight (witnesses and testator must personally observe signing of the will)
Modern: Conscious Presence (Witnesses or testator must be aware the act is being performing, even if they cannot see it) [UPC only adopts this approach when the will is signed by another on testator’s behalf]
Which state law governs for the validity of a will and the transfer of personal property?
The law of the state where the decedent was domiciled at time of death
