Execution of Wills

Question 1

What does a valid will require?

Answer 1

Valid will requires
-> writing signed by the testator
-> T has present testamentary intent (this also includes the requirement that T has the capacity to carry out their action)

Additional formalities that tend to be required by most jurisdictions
-> will is signed in the joint presence of two witnesses
-> both witnesses understand the significance of the testator’s act AND that the will has no legal effect until after the testator’s death
-> both witnesses sign the will (not necessarily in each others presence)

Question 2

Who is a testator?

Answer 2

The person whose property will be disposed of via the execution of the will.

Question 3

Can an entire will be in writing?

Answer 3

Yes but it still needs to meet the signature and witness requirements.

Question 4

Where does the location of the signature need to be in order for the will to be valid?

Do states differ on how they interpret the location of the signature on the will?

Answer 4

Some states
-> require signature at the end, otherwise the WHOLE will is invalid

Most states (including UPC)
-> a signature anywhere on the will is valid, BUT the portion of the will after the signature is INVALID

Question 5

Is there a requirement with regards to the form of the signature?

Answer 5

T’s formal name is not required if the form used in the signature is used to indicate T’s intent.
-> e.g. an “X” is sometimes sufficient to show T’s intent to sign so satisfies the form of the signature

Question 6

Can someone sign on T’s behalf?

Answer 6

Signature on T’s behalf is permitted by a person in T’s presence and at T’s direction.

Question 7

At what age is T’s capacity valid?

Is T’s mental capacity presumed or not?

With what knowledge is T’s mental capacity deemed to have been met?

Answer 7

T must be at least 18 years of and of sound mind (mental capacity).

T’s mental capacity is presumed unless challenged.

T meets mental capacity if she knows (capacity is presumed unless challenged):
-> nature and extent of her property
-> persons who are the natural objects of T’s bounty
-> disposition she is trying to make,
AND
-> testamentary plan

Question 8

How many witnesses required to create a valid will at the signing of the will?

Answer 8

At least two but sometimes three if states require three.

Question 9

Must the witnesses be present at the signing of the will for the will to be valid?

Answer 9

In general, the will must be signed by T (or by a person on T’s behalf) in the joint presence of two Ws

Under the UPC
-> T may acknowledge his signature to Ws for will to be valid
-> Ws need to be present at the same time the will is signed by T

Question 10

Must the two Ws sign the will?

Is an attestation clause required?

In the presence of who must the Ws sign the will?

Answer 10

Yes they must.

No it isn’t required.

The two Ws must sign in the presence of the T, but not necessarily themselves.

Question 11

What does the UPC stipulate with regards to Ws signing the will?

Answer 11

W may sign within a reasonable time after witnessing T sign or acknowledge the will.

Question 12

What are the two tests to determine if the will is signed in the presence of the two Ws?

Answer 12

Line-of-sight (traditional) test
-> T and Ws see (or have the opportunity to see) each other sign the will

Conscious-presence (modern) test
-> T and W must be aware through any sense that each is signing the will

Question 13

What is the knowledge requirement with regards to the Ws and the will?

Answer 13

The Ws must be aware that the instrument is a well, BUT NEED NOT know its contents.

Question 14

Is there an age and competency requirement for the Ws?

Answer 14

W must have sufficient mental capacity/maturity to comprehend the value of the act of witnessing; such capacity is determined at the time of signing

Question 15

What is an interested W?

Answer 15

A witness who receives a gift under the will.

Question 16

How does the interested W doctrine work under the:
-> CL
-> purge theory
-> UPC

Answer 16

CL
-> an interested W is not competent as a W
-> the will is invalid unless there are at least two disinterested Ws

Purge theory
-> a gift to the W is denied to the extent of the amount in excess of W’s intestate rights (e.g. if W gets nothing intestate, then gift is not allowed)

UPC
-> interested W doctrine is abolished so two interested Ws is sufficient

Question 17

Is testamentary intent required for a valid will?

How is the T’s testamentary intent found?

Answer 17

Yes T must execute a will with present testamentary intent in order for the will to be valid.

T must
-> understand that he is executing a will
AND
-> intend that it have testamentary effect

Question 18

Must T know and understand all the contents of a will?

Answer 18

T must generally know and approve of the will’s contents, BUT NEED NOT understand all the provisions.

Question 19

How does the doctrine of integration work with a will?

Answer 19

Through the doctrine of integration a will consists of all pages. present at the execution AND intended to be a part of the will.

Question 20

Is compliance with all these statutory requirements required?

Answer 20

Under CL and majority of states
-> strict compliance for the will to be valid

Under the UPC and minority of states
-> substantial compliance is sufficient if there is CLEAR and CONVINCING evidence of T’s intent

Question 21

What is a holographic will?

What are the requirements of a holographic will?

Must the entire will be in T’s handwriting?

Answer 21

A will in T’s handwriting

Requirements of a holographic will:
-> writing signed by the testator
-> T has present testamentary intent (this also includes the requirement that T has the capacity to carry out their action)

Some states
-> entire will be in T’s handwriting

Other states (including UPC)
-> only the material provisions must be in T’s handwriting (e.g. a filled in printed form could be a holographic will)

Question 22

Can a proxy sign the holographic will on T’s behalf?

Are witnesses required for a holographic will?

Does the holographic will need to be dated?

Answer 22

No only T can sign the will, no proxy is permitted.

No witnesses are not required.

Required by some states but not states that follow the UPC.

Question 23

How is testamentary intent found In a holographic will?

What does the UPC say regarding this?

Answer 23

Intent can be presumed via
-> usage of specific language such as “I bequeath”
OR
-> T’s use of a printed form (where they handwrite the gaps)

Under the UPC
-> established by reference to other handwritten parts
OR
-> through extrinsic evidence

Question 24

Are handwritten changes after the holographic will is completed valid?

Answer 24

Yes they are in most states.

Question 25

What is a “self-proved” will?

What effect does such a will have?

Answer 25

A will that is
-> acknowledged by T and affirmed by Ws,
-> through Ws affidavits,
-> BEFORE a court official.

Effect
-> removes the need for testimony of the attesting Ws at a formal probate proceeding

Question 26

What unique characteristic can a “self-proved” will provide when the Ws forgot to sign it, but they signed their affidavits?

Answer 26

The signatures on the affidavits can be used as the signature requirement for the will, when Ws forgot to sign the actual will.

Question 27

What is a nuncupative will?

Is it allowed?

Answer 27

It’s an oral will.

Most states (including UPC)
-> not allowed

Some states
-> permitted, but valid for disposition of limited personal poetry made in contemplation of immediate death

Question 28

What are codicils?

How are codicils executed?

Answer 28

They are changes or additions to a will.

In order for codicils to be executed, the same formalities as for a will must be observed.

Question 29

What effect does codicils have?

Answer 29

It
-> republishes the will as of the date the codicil was executed

It may
-> validate an invalid will

Question 30

What are will substitutes?

What are seven types of will substitutes?

Answer 30

They are methods for transferring property outside of probate.

The seven types are:
-> revocable trusts
-> pour-over wills
-> bank accounts and securities registered in beneficiary form
-> payable-on-death clause in K
-> Life insurance
-> deeds
-> totten trusts

Question 31

What is a pour-over trust?

Answer 31

A pour-over devise is a provision in a will that directs the distortion of property to a trust upon the happening of an event, so that the property passes according to the terms of the trust without the necessity of the will reciting the entire trust.

Question 32

What is a Totten trust?

Answer 32

A type of removable trust set up with a bank (similar to a payable-on-death account) that allows the beneficiary to put in and withdraw from the account.

Question 33

How does a life insurance work?

Answer 33

Police proceeds are not part of D’s estate unless payable to the estate as a beneficiary
-> goes to beneficiary listed on life insurance policy K

Question 34

How can a deed be used as a substitute for a will? Does it need to meet additional requirements?

Answer 34

Unconditionally delivered to the grantee during D’s lifetime OR delivered to an escrow agent during D’s lifetime with instruction to turn over to the grantee upon D’s death
-> no other requirements needed to transfer as D made a remainder interest for the grantee

Question 35

When can a deed be written in a way where it must actually comply with a will?

Is compliance always required?

Answer 35

Delivered to an escrow agent during D’s lifetime with instruction to turn over to the grantee IF grantee survives D THEN
-> deed must comply with the execution of the will in order for the transfer to be valid
-> BECAUSE the transfer did not create a remainder interest but a testamentary interest (survive me and you get X)

Some states allow transfer on death (TOD) deed; does not require will formalities.