Execution of Wills

Question 1

What is a Will?

Answer 1

An instrument executed in accordance with applicable state formalities that may direct disposition of decedent’s property at death and/or set forth instructions pertaining to management of the persons or assets

Question 2

What is a codicil?

Answer 2

A testamentary instrument that amends, supplements, or revokes a will

Question 3

General Requirements for Execution of a Will

Answer 3

(1) Must be Eighteen and of sound mind

(2) Must have present testamentary intent, meaning:
* (a) Intend to dispose of property; (b) intend for that disposition to happen at the time of death; and (c) intend that this instrument accomplish that purpose

(3) Must have testamentary capacity at the time of will execution, meaning the must have the ability to understand:
* (a) the nature and extent of their property; (b) the persons who are the natural object of their bounty; (c) the nature of the act they are performing; and (d) the way in which all these concepts interact, such that they formulate a cohesive plan and orderly scheme of disposition

Question 4

Requirements for Execution of Attested Wills (or Codicils)

Answer 4

(1) In writing

(2) Signed by the testator or by another in the testator’s presence and at their direction
* Need not be at the end of a will, but must be manifest that signed name is intended as signature

(3) Two attesting witnesses

(4) Presence requirements (i.e., witnesses must be together when testator signs)

(5) Witnesses must sign in the testator’s presence (but not necessarily in one another’s presence)
* Witnesses must be competent at the time of signing
* Testator need not physically see witnesses as they sign so long as testator is aware of where they are and what they are doing
* No publication requirement – witnesses do not need to know that they are signing a will (i.e., validly attested even if they thought they were signing POA or deed)

Question 5

When (Most Commonly) May Formal Requirements Be Dispensed With

Answer 5

Must be shown by clear and convincing evidence that decendent intended document to constitute will (“Dispensing Power Statute”)
(1) No writing
(2) No signature by testator
* Switched will case where two mistakenly sign each other’s wills
* Testator signs self-proving affidavit, but not will itself

(3) Defective witnessing (MOST COMMON)

Question 6

Are conditional wills valid?

Answer 6

Yes, only if some condition stated in the will is satisfied
* But language that reads like a condition may be interpreted as merely expressing motive or inducement for making will, meaning will can take effect
* * Example - “I have planned a trip to summit Mount Everest, and so I am drafting this will” versus “If I die on Mount Everest, this will is effective”

Question 7

What is a Holographic Will and When is it Effective?

Answer 7

A handwritten and unattested will/codicil, effective if they:
(1) Meet requirements for testamentary capacity and present testamentary intent

(2) Wholly in testator’s handwriting; and
* Not taken literally–typewritten text that may be disregarded without violating intent will be disregarded
* All handwritten portions considered unless by someone other than testator

(3) Signed by testator
* Should be signed at the end, but if not, there must be some formal closing statement to show “finality of instrument” and note that testator’s name, written elsewhere in document, is intended to be signature

NOTE that in probate, two disinterested persons must testify that the will is wholly in testator’s handwriting

Question 8

Is a self-proving affidavit required for a valid will?

Answer 8

NO, but if not, the testimony of at least one of the two witnesses will be required to admit it to probate

INCLUDE THIS IN RULE STATEMENT FOR EXECUTION OF WILLS