Execution of Wills Flashcards
Real Property - Applicable Law
the validity and effect of a will with respect to real property are determined by the law fo the state where the property is located.
Personal Property - Applicable Law
With respect to personal property, teh validity and effect of a will are determined by teh law of the testator’s domicile at the time of death.
Out-of-state and Foreign Wills
UPC have a “savings statute” which provides that the will is valid if it complies with local law, law where it was executed, or law of decedent’s domicile at death or will’s execution.
Will Requirement
- Legal Capacity
- Testamentary Intent
- Testamentary Capacity
- Formalities
Legal Capacity
Must be at least 18 years old and of sound mind at the time the testator makes a will.
Some states allow you to be under the age of 18 if you are married or in the military.
Testamentary Capacity
This is a very low standard
A testator must simply have the capacity to understand:
- the nature of their act
- the nature and extent of their property
- the persons who are the natural objects of their bounty (their family)
- Be able to formulate an orderly scheme of disposition.
Testamentary Capacity Issues
Capacity Determined at Time of Will’s execution
T with Mental or Physical ailments or Drug addiction does not mean they lacked testamentary capacity.
T adjudicated insane or incompetent - it is evidence that T lacked capacity, but it is not conclusive.
Testamentary Intent
T must have present intent that the instrument operate as their will.
Formalities of Will (and codicil)
- must be in writing
- Signed by T or proxy in in each of the witness’s presence; and
- Attestation - signed by 2 witnesses that are credible in T’s presence or signed by notary
Interested witnesses
CL - a witness who was also a beneficiary was not competent and 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 not have taken a share as an heir if the will had not been probated.
NOTE: under the UPC, gifts to interested witnesses are not purged.
Presence Requiremen
The act of signing took place within the general awareness and cognizance of the other parties.
Attestation Clause
Not required, but useful if a witness forgets or misremembers the facts surrounding the execution.
recites the elements of due execution and is prima facie evidence of those elements.
Self-Proving Affidavit
May substitute for in-court testimony for witnesses
A self-proving affidavit recites that all the elements of due execution were performed and is sworn to by the T and witnesses before a notary public.
Signatures on an affidavit can be counted as signatures on will
Notorization
Some states and the UPC allow notarization to substitute for the attestation of witnesses.
Harmless Error
UPC - Court can ignore harmless errors
Even though a will is not executed in accordance with all of the required statuory formalities, the UPC gives the court the authority to ignore harmless errors.
The defectively executed will can be given effect if the will proponent establishes by clear and convincing evidence that the T intended the document to be their will.
