Execution of Wills Flashcards
What state law do you apply for personal property vs. real property?
Personal Property — Apply law of decedent’s domicile at death
Real Property — Apply law of the situs of the property
Situs: The state where the property is located
What is a Will?
A will is an instrument, executed with certain formalities, that usually directs the disposition of a person’s property at death.
- Revocable— A will is revocable during testator’s lifetime and operative at their death
- Will Has No Legal Effect Until Testator’s Death — Until the testator’s death, the will is revocable (or amendable), and the beneficiaries only have an expectancy (i.e., they acquire no property rights under the will)
What is a codicil?
A supplement to a will that modifies it
Does a Will Need to Dispose of Property to Be Valid?
NO! A will DOES NOT have to dispose of property to be valid. The term “will” includes an instrument that merely appoints a personal representative or revokes or revises another will.
What are the main Testamentary Capacity Requirements?
At the time the will was executed, the testator must be:
- 18 Years Old
- Of Sound Mind
What level of Testamentary Capacity is Required?
A testator need not have the higher level of capacity required for contracts. A testator simply must have the capacity to understand:
- The nature of their act (that the testator is executing a will)
- The nature and extent of their property
- The persons who are the natural objects of their bounty (family members)
- The above factors and be able to formulate an orderly scheme of disposition
At what time period is Capacity relevant for Testamentary Capacity analysis purposes?
Capacity is determined at the time of the will’s execution
Testator with Mental or Physical Ailments or Drug Addiction: The fact that the testator was old, ill, possessed a failing memory, or was an alcoholic or drug addict DOES NOT mean they lacked testamentary capacity.
Insane or Incompetent Testator: An adjudication of insanity or an appointment of a guardian or conservator is evidence of a testator’s lack of capacity, but is NOT conclusive. A person adjudicated incompetent may be able to execute a will during a “lucid interval.”
What is the Testamentary Intent Requirement?
The testator must have PRESENT INTENT that the instrument operate as their will. Promises to make a will in the future and ineffective deeds are not given effect as wills.
When Testamentary Intent is Unclear — Testamentary intent will be found only if it is shown that the testator intended:
- To dispose of the property
- The disposition to occur only upon his death
- That the instrument accomplish the disposition
What are the usual requirements for Execution of Attested Wills?
1) Writing
2) Signature of Testator (or by another who was directed by the testator while in their presence)
- Any mark made by the testator with the intent that it operate as their signature SATISFIES the signature requirement
- Order and Location of Signatures: In most states and under the UPC, a will is valid if signed anywhere on the instrument, not just at the end.
3) Two Attesting Witnesses
4) Presence: The testator must sign the will (or acknowledge her previous signature or the will) in the presence of each of the witnesses.
- The witnesses must sign in the testator’s presence
State Where Signature At End is Required: Some states hold that the will is void. Other states uphold the will but disregard everything following the signature
What are the two main UPC requirements for Wills?
A will is valid if either under the UPC:
- Attested by 2 competent witnesses
- Signed by a notary
What are the 2 Main Presence Tests?
A) Conscious Presence Test (Majority): The presence requirement is satisfied if each party was conscious of where the other parties were and what they were doing, and the act of signing took place nearby, within the general awareness and cognizance of the other parties.
B) Scope of Vision Test: Under this test, a person is present ONLY if he could have seen the signing.
- This DOES NOT mean that the signing must actually have been observed, but only that the person was in such close proximity that he could have seen the signing had he looked.
What is Publication of a Will?
Some states might require the testator to publish the will by informing the witnesses that the document is the testator’s will.
What is the Common Law Rule vs. the Modern Rule with Interested Witnesses?
Common Law: At common law, a beneficiary under the will was forbidden from being an attesting witness. This rule has been ABOLISHED in every state
Majority Rule — In most states, the will is valid, BUT the gift to the witness-beneficiary is void.
- These are called “purging statutes” because they operate to purge the bequest to the witness.
UPC — Gifts to interested witnesses are NOT purged
What are the 2 exceptions to the Majority Rule with Interested Witnesses?
As explained above, the majority rule with Interested Witnesses is that the will is valid BUT the gift to the Interested Witness is VOID.
There are 2 main exceptions:
- Witness was a supernumerary witness: When a witness is one of three attesting witnesses and the will can be proved without that witness’s testimony
- Witness would take if will had not been admitted to probate
What is an Attestation Clause?
An attestation clause recites the elements of due execution and is prima facie evidence of those elements. It is not required, but it is useful if a witness forgets or misremembers the facts surrounding the execution.
