Execution of Wills Flashcards
What is a will
an instrument executed w certain formalities that directs the disposition of a person’s prop. It is revocable during testator’s (t) lifetime and operative upon their death
most states req strict compliance
UPC permits court to excuse minor errors using a substantial compliance test
Codicil
a supplement to a will that modifies it
Out of State and Foreign Wills
UPC/Most states have ‘savings statute’; a 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) T’s domicile at the time of the will’s execution, or 4) T’s domicile at death
Legal Capacity
T must be at least 18 years old and of sound mind at the time they make a will
some states allow T <18 to make a will if they are married or in the military
Testamentary Capacity
T must have the capacity to understand:
- Nature of their act
- Nature and extent of their prop
- The persons who are the natural objects of their bounty (family members)
- And be able to formulate an orderly scheme of disposition
T must have testamentary capacity when the will is executed; crazy people, old people, and addicts can have ‘lucid intervals’ where they have capacity and can make a will, not automatically proven to lack capacity
Testamentary intent
T must have present intent that the instrument operate as their will. Promises to make a will in the future or ineffective deeds are not given effect as wills.
Intent is found only if it is shown that T:
- Intended to dispose of their prop;
- Intended the disposition to occur only upon their death; and
- Intended that the instrument in question accomplish the disposition
Execution of Attested Wills
To be valid and admissible, will must meet formal reqs; MOST states req:
- Will in writing
- Signed by T
- 2 attesting witnesses
- T signs the will in each of the witnesses’ presence; and
- Witnesses sign in T’s presence
Some States add more:
- T must sign at end of will
- T must publish the will (declare to witnesses that doc is will)
- Witnesses must sign in the presence of each other
UPC reqs:
- Will is attested by 2 competent witnesses, OR
- It is signed by a notary
T’s Signature
Any mark made by T with the intent that it operate as their signature is sufficient.
T’s sig may be made by another at T’s direction AND in their presence. If proxy signs their name as well, they may be counted as attesting witness
Most St/UPC T can sign anywhere
Min St, T must sign at the end of will or else could be held void
Witnesses
need 2 competent witnesses; witness is competent if they are mature enough and have sufficient mental capacity that they could testify in court if needed.
Min states req that T publish will by informing witnesses that the doc is T’s will.
Interested Witnesses
Common Law: a witness who is also a beneficiary is not competent, and will cannot be probated unless there are 2 other competent witnesses
Modern law: will is still valid, but the gift to the interested witness may be void under a ‘purging statute’ UNLESS they are supernumerary (extra) or would have taken a share intestate
UPC: will valid, gifts to interested witnesses NOT purged
Presence Req
[Maj.] Conscious Presence Test: presence satisfied if each party was conscious of where the other parties were and what they were doing, AND the act of signing took place w/in the general awareness and cognizance of the other parties.
[Min.] Scope of Vision Test: satisfied only if the person was in such close proximity that they could have seen the signing had they looked.
Participating via phone or computer IS NOT presence UNLESS state has specific e-will legislation.
Attestation Clause
recites the elements of due execution and is prima facie evidence of those elements. Not required but it’s useful for testimony if witness forgets.
Self-Proving Affidavit
recites that all the elements of due execution were performed and it sworn to by T and 2 witnesses before a notary.
Acts like a deposition and eliminates the need to produce witnesses in probate court
Maj. view is that signatures on the affidavit can serve as the signatures needed on the will itself
notarization
min states/UPC allow notarization to substitute for the attestation of witnesses
UPC - Harmless Errors
UPC gives the court authority to ignore harmless errors.
Will can be given effect if the will proponent establishes by CLEAR AND CONVINCING EVIDENCE that T intended the doc to be their will
Holographic Wills
Will in T’s handwriting w/ no witnesses.
UPC/Most States: will accept a holographic will that contains SOME typewritten text AS LONG AS the portion not in T’s handwriting is not material
Codicils can also be holographic
Oral Wills
Most States/UPC do NOT recognize oral wills.
Min. States allow oral wills only for the disposition of PERSONAL prop and ONLY IF made by: 1) soldiers or 2) any person during their last sickness or in contemplation of immediate death. 2 or more witnesses to the spoken word are often needed
Attorney Liability for Negligence
intended beneficiaries can sue the attorney for negligence or as a 3rd party beneficiary of the attorney-client contract.
SOL begin to run on the date of D’s death
Most states req privity for malpractice so intended beneficiaries would lack standing for that action.
