Execution of Wills

Question 1

Capacity

Answer 1

• The testator must be at least 18 years old and possess a sound mind.

Question 2

Testamentary Intent

Answer 2

The testator must understand he is executing a will and intend for it to have testamentary effect.

Question 3

Writing & Signature

Answer 3

The will must be in writing and signed by the testator, or by some other person in his presence and at his direction.

Question 4

Witnesses

Presence

Answer 4

• Majority view: The will must be signed in the joint presence of and attested to by two witnesses.
• UPC: The witnesses do not have to be present at the same time. Also, the T does not have to sign in their presence, as long as he acknowledges his signature to them before they sign and they sign within a reasonable time.

Question 5

Witnesses

Interested witness problem

Answer 5

• At common law, not been validly executed.
• Under modern approach, invalidate only the portion of the will that provides a gift to the interested witness in excess of what the witness would have otherwise received under intestacy.

Question 6

Compliance

Answer 6

• At common law, strict compliance with the formalities was required.
• Under the UPC, T must substantially comply with the required formalities if there is clear and convincing evidence he intended for the document to serve as his will.

Question 7

Holographic Wills

Answer 7

• T must handwrite the “material provisions” of a holographic will.
• T must sign the instrument.
• T intended the document to be a will.

Question 8

Codicils

Answer 8

• must be executed with the same formalities as a will