Execution of Wills Flashcards
What are elements required to create a valid will?
- testamentary intent
- testamentary capacity
- adherence to statutory formalities
What is standard for testamentary intent?
At time of execution, testator intends that this particular document constitute their will
How can testamentary intent be overcome?
- undue influence
- fraud
- mistake
What is required to prove undue influence?
Challenger must prove the wrongdoer exerted such influence over the testator that
1. overcame the testator’s free will
2. cause testator to make a transfer they wouldn’t have otherwise made
When does the presumption of undue influence arise?
Presumption of undue influence exists if:
1. the wrongdoer was in a confidential relationship with the testator
2. there were suspicious circumstances surrounding the preparation and execution of the will
What are the types of fraud that negate intent?
- Fraud in the execution
- Fraud in the inducement
What is fraud in the execution?
Fraud as to the nature of the contents of the writing itself
What is effect of fraud in the execution?
The will is invalid
What is fraud in the inducement?
When a beneficiary
1. made a knowingly false representation to testator for the purpose of inducing testator to execute a will in their favor
2. testator wouldn’t have made such devise in the absence of the representation
What is the effect of fraud in the inducement?
If only part of the will was the product of fraud, the court can reject that portion of the will and probate the rest of the will (the gift procured by inducement will fall into residue)
What are the types of mistakes that can negate testamentary intent?
- Mistake. in the execution
- Mistake in the inducement
What is a mistake in the execution?
Mistake as to the nature of the document
What is the effect of mistake in the execution?
The will is invalid
What is a mistake in the inducement?
When testator executes a will or clause because the testator is mistaken as to the true nature of the facts
What is the effect of mistake in the inducement?
Mistake in the inducement does not affect testamentary intent and therefore relief won’t be granted
What is required for testamentary capacity?
At the time the will is executed, testator
1. must be at least 18
2. be of sound mind
What is required for testator to be of sound mind?
Sound mind requires that the testator have the ability to understand:
1. the nature, condition and extent of their property
2. the nature of the disposition they are making of their property
3. the names of and relationships to the natural objects of their bounty (the beneficiaries)
What are statutory formalities required for an attested will?
An attested will must beL
1. in writing
2. signed by the testator
3. witnessed or attested
What is required for testator’s signature?
Testator may either sign the will or someone in the testator’s presence who the testator directs may sign the will
What is an attested will?
A will acknowledged by the testator before a notary public
What is witness requirement?
- signed by two people
- each witness signs within a reasonable time of witnessing the testator sign, or hearing the testator acknowledge that the signature on the will is their signature
What is UPC rule regarding interested witnesses?
Under the UPC, interested witnesses don’t invalidate either the will, or the gift to the interested witness
What is minority position regarding interested witnesses?
A minority of states treat interested witnesses as having predeceased the testator
What is required for a holographic will to be valid under the UPC?
To be valid under the UPC, a holographic will
1. must have material portions be in testator’s handwriting
2. testator must sign the will at the bottom
Are contracts to make a will valid?
Yes, under the UPC a contract to dispose of a person’s real or personal property by will is valid
How is a contract to make a will established?
- provisions of a decedent’s will stating the material provisions of the contract
- an express reference in decedent’s will to a contract and extrinsic evidence proving the terms of the contract
- a writing signed by decedent that evidences the contract
What is the effect of a joint will in minority states?
A joint will creates the presumption that the parties to the joint will had contracted not to revoke the will except with consent of both
What is required for a joint will?
Two people execute a single document as their joint will
What is effect of joint will under the UPC?
No presumption arises regarding revocability, and the will is revocable by either party
What is a codicil?
An instrument executed after a will that refers to another document by adding to, explaining or deleting from a pervious testamentary instrument
What are formalities required for codicils?
Codicils must follow the same formalities as an attested will
What is republication by codicil?
A codicil republishes the will to which it refers
What is the effect of republication by codicil?
The original will is treated as if it was written on the date the codicil was executed
