Execution of Wills

Question 1

What Constitutes a Will

Answer 1

• the only way to avoid intestacy = leave a valid will disposing of all property
• will = instrument executed w/ certain formalities that usually directs the disposition of a person’s property at death, although an instrument that merely appoints a personal rep or revokes an earlier will can be a will
• will is revocable during testator’s lifetime and operative at their death

Question 2

Codicil - Definition

Answer 2

• a supplement to a will that modifies it

Question 3

Wills - Extent of Compliance Required

Answer 3

• most states require exact compliance with formalities for a valid will
• HOWEVER, UPC permits court to excuse minor errors using a substantial compliance test

Question 4

Applicable Law for Wills

Answer 4

• law of the state where property is located determines the validity + effect of a will wrt real property
• wrt personal property, validity + effect of will determined by law of testator’s domicile at time of death
• most states + UPC have a “savings statute” -> will is admissible to probate in a jurisdiction if the will has been executed in accordance with the law of: 1) that jurisdiction, 2) the state where the will was executed, 3) the testator’s domicile at time of will’s execution OR 4) testator’s domicile at death
  -> these savings rules only apply to determine if the will is admissible to probate, once will admitted to probate, local law governs construction + application of the will’s provisions

Question 5

Legal Capacity

Answer 5

• testator normally must be at least 18 + of sound mind at time testator makes will
  -> some states allow testators under 18 if married or in military

Question 6

Testamentary Capacity

Answer 6

Only need capacity to understand:
- the nature of the act (i.e. that testator is executing a will)
- the nature + extent of their property
- the persons who are the natural objects of their bounty (family members)
- the above factors + be able to formulate an orderly scheme of disposition

• note that this is a lower standard than the level of capacity required for contracts

Question 7

Testamentary Capacity Issues

Answer 7

• capacity determined at time of will’s execution
• testator with mental or physical ailments or drug addiction
• testator adjudicated insane or incompetent

Question 8

When Is Testamentary Capacity Determined

Answer 8

• testator must’ve had capacity when the will was executed
• all circumstances existing at that time are admissible, as well as evidence of the testator’s state of mind shortly before and shortly after will’s execution

Question 9

Testator with Mental or Physical Ailments or Drug Addiction

Answer 9

• fact that testator was old, ill, possessed a failing memory, or was an alcoholic or drug addict does not mean they lacked testamentary capacity
• mentally challenged individual can make a will as long as they meet the requirements above
• sane person may lack capacity at times, ex, because they were under the influence of intoxicating substances or disoriented because of an accident or medical procedure

Question 10

Testator Adjudicated Insane or Incompetent

Answer 10

• adjudicator of insanity or an appointment of a guardian or conservator is evidence of a testator’s lack of capacity, but is not conclusive
• person adjudicated incompetent may be able to execute a will during a “lucid interval”

Question 11

Testamentary Intent

Answer 11

• 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
• parol evidence is admissible to show that an instrument was not meant to have any effect

When not clear whether an instrument was intended to be testamentary, testamentary intent will be found only if it is shown that the testator:
1) intended to dispose of the property
2) intended the disposition to occur only upon his death AND
3) intended that the instrument in question accomplish the disposition

Question 12

Execution of Attested Wills

Answer 12

• to be valid + admissible to probate, will must meet the formal requirements of due execution imposed by statutes of the appropriate state

Most states require:
- in writing (for will or codicil), though 10 states permit e-wills
- signed by the testator (or another at testator’s direction + in their presence
- two attesting witnesses
- testator sign the will in each of the witnesses’ presence
- witnesses sign in the testator’s presence

Some impose one or more of the following additional reqs:
- testator must sign at end of will
- testator must “publish” the will (declare to witnesses that the document is the testator’s will) AND
- witnesses must sign in presence of each other

Question 13

Testator’s Signature

Answer 13

• any mark made by testator with the intent that it operate as their signature satisfies the signature requirement

Question 14

Proxy Signatures

Answer 14

• testator’s signature may be made by another person at the testator’s direction + in their presence
• if proxy signer signs their own name as well, they may be counted as an attesting witness

Question 15

Order + Location of Signatures

Answer 15

• order of signing not critical as long as the signing is done as part of a single contemporaneous transaction
• in most states + under the UPC, a will is valid if signed anywhere on the instrument, not just at the end
• where the signature is required to be at the end + testator signs elsewhere, some states hold that the will is void vs others uphold the will as valid but disregard everything following the signature

Question 16

Witnesses - Competency

Answer 16

• at the time the will is executed, the witness is mature enough + of sufficient mental capacity that they could testify in court on these matters
• some states impose a minimum age

Question 17

Witnesses - Publication

Answer 17

• states vary regarding whether testator must “publish” the will by informing the witnesses that the document is the testator’s will and regarding whether the witnesses must know they are witnessing a will
• no state requires the witnesses to know the contents of the will

Question 18

Interested Witnesses

Answer 18

• at common law, a witness who was also a beneficiary was not competent, + the will could not be probated unless there were two other competent witnesses
• all states now provide that the will is still valid, but the bequest to the interested witness may be void under a “purging statute” unless they are supernumerary or would have taken a share as an heir if the will had not been probated
• under UPC, gifts to interested witnesses are not purged

Question 19

Parties Who Don’t Count as “Interested”

Answer 19

• attorneys
• creditors
• fiduciaries under the will (trustees)
• not disqualified from collecting debts or serving the estate because they or their employees witnessed the will

Question 20

Witnesses - Presence Requirement

Answer 20

• some states require testator to sign the will in the witnesses’ presence, + the witnesses to sign in the testator’s presence
• to determine when a person is in another’s presence, most courts use the “conscious presence” test
  -> substantial minority use the “scope of vision” test
• in most states, witnesses do not need to attest in each other’s presence
• participating via telephone or computer is NOT presence for the purpose of fulfilling execution reqs unless the state has specific e-will legislation

Question 21

Presence Requirement - Conscious Presence Test

Answer 21

• presence satisfied if each party was conscious of where the other parties were + what they were doing, and the act of signing tok place within the general awareness and cognizance of the other parties

Question 22

Presence Requirement - Scope of Vision Test

Answer 22

• requirement satisfied only if the person was in such close proximity that they could have seen the signing had they looked

Question 23

Attestation Clause

Answer 23

• recites the elements of due execution and is prima facie evidence of those elements
• not required, but it is useful if a witness forgets or misremembers the facts surrounding the execution

Question 24

Self-Proving Affidavit

Answer 24

• recites that all the elements of due execution were performed + is sworn by the testator and witnesses before a notary public
• functions like a deposition + eliminates need to produce the witnesses in court yrs later
  -> makes probate faster + cheaper
• common practice to use a self-proving affidavit with all wills b/c often difficult to find witnesses as they die, are unavailable, or do not remember witnessing the will
• majority of signatures allow the signatures on the affidavit to serve as the signatures on the will itself

Question 25

Notarization

Answer 25

• some states + UPC allow notarization to substitute for the attestation of witnesses

Question 26

Uniform Probate Code - Harmless Errors

Answer 26

• UPC gives court authority to ignore harmless errors if will not executed in accordance with all of the required statutory formalities
• defectively executed will can be given effect if the will proponent establishes by clear + convincing evidence that the testator intended the doc to be their will

Question 27

Holographic Wills

Answer 27

• wills entirely in testator’s handwriting + without any attesting witnesses
• states vary wrt how much material may be typewritten before will no longer qualifies as holographic
  -> UPC + most states that recognize holographic wills accept a will that contains some typewritten text as long as the portion not in the testator’s handwriting is not material
• must contain testator’s signature, but need not be at end of will
  -> nickname, first name, or initials can count
• most states recognize holographic wills give effect to handwritten changes made by the testator after the will is completed

Question 28

Changes After Will Execution

Answer 28

• interlineations, changes in beneficiaries, amounts, etc made after execution of an attested will are usually not given effect
  -> may work a revocation
• where such changes are made to an attested will in a jurisdiction that recognizes holographic wills, though, these changes are often construed as valid holographic codicils
• for holographic wills, most states give effect to handwritten changes

Question 29

Oral Wills

Answer 29

• most states + UPC do NOT recognize oral wills
• small number of states that do so (includes NC) do so only for disposition of personal property and only if made by:
  1) soldiers or sailors (with some states requiring an armed conflict in progress) OR
  2) any person during their last sickness or in contemplation of immediate death
• two or more witnesses to the spoken words are often needed

Question 30

Attorney Liability for Negligence

Answer 30

• in most states, an attorney’s duty runs not only to the client but also to the intended beneficiaries of the attorney’s services
  -> they can sue attorney for negligence or as third party contract beneficiaries
• intended beneficiaries of a will may sue attorney for negligent preparation or execution
• in such an action, the statute of limitations begins to run on the date of the decedent’s death + not on the date the will was executed
• however, a significant number of states still require privity between attorney + malpractice pl -> in these states, intended beneficiaries would lack standing to sue for malpractice