Execution of Wills Flashcards
Will - basic definition, revocability, codicil
A will is an instrument executed with certain formalities that usually directs the disposition of a person’s property at death
A will is revocable during the testator’s lifetime and operative at their death
A codicil is a supplement to a will that modifies it
Exact compliance or substantial compliance
Most states require exact compliance with the formalities to execute a will, rather than substantial compliance with all requirements for a valid will
UPC permits the court to excuse minor errors using a substantial compliance test
Beneficiary - property interest in will
Because a will is not operative until the testator’s death, a beneficiary has merely an expectancy until that time
- not a property interest
What law for validity and effect of a will
Validity and effect of a will with respect to real property is determined by the law of the state where the property is located
With respect to personal property, the validity and effect of a will are determined by the law of the testator’s domicile at the time of death
Once law is admitted to probate, local law governs the construction and application of the will’s provisions
Savings statute
Most states and the 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
- that jurisdiction
- the state where the will was executed
- the testator’s domicile at the time of the will’s execution, or
- the testator’s domicile at death
Legal capacity
The testator normally must be at least 18 years old and of sound mind at the time the testator makes a will
Some states allow testators under 18 to execute a will if they are married or in the military
Testamentary capactiy
A testator need not have the higher level of capacity required for contracts
Testator simply must have the capacity to understand
- the nature of their act (executing a will)
- the nature and extent of their property
- the persons who are the natural objects of their bounty
- the above factors simultaneously and able to formulate an orderly scheme of disposition
When capacity is determined
The testator must have 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 the will’s execution
Testator - mental or physical ailments or drug addiction
Fact that the testator was old, ill, possessed a failing memory, or was an alcoholic or drug addict does not mean they lacked testamentary capacity
Mentally challenged person can make a will as long as meet requirements
Sane person may lack capacity at times - under influence, etc
Testator adjudicated insane or incompetent
An adjudication of insanity or an appointment of a guardian or conservator is evidence of a testator’s lack of capacity, but it is not conclusive
Adjudicated incompetent may be able to execute a will during a lucid interval
Testamentary intent
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
Testamentary intent - not clear whether instrument intended to be testamentary
When it is not clear whether an instrument was intended to be testamentary, testamentary intent will be found only if it is shown that the testator
- intended to dispose of the property
- intended the disposition to occur only upon his death, and
- intended that the instrument in question accomplish the disposition
Execution of attested wills
To be valid and admissible to probate, a will must meet the formal requirements of due execution imposed by the statutes of the appropriate state
Most states require
- in writing (10 states permit wills to be in electronic form without a physical copy)
- will or codicil be signed by the testator, or another at testator’s direction and in their presence
- two attesting witnesses
- testator sign the will or acknowledge their previous signature or acknowledge the will in each of the witnesses’ presence, and
- witnesses sign in the testator’s presense
Some states impose one or more of following additional reqs
- testator must sign at the end of the will
- testator must publish the will (declare to the witnesses that it is the will),
- witnesses must sign in presence of each other
Valid will under UPC
Under the UPC, a will is valid if it either
- is attested by two competent witnesses, or
- signed by a notary
Testator’s signature
Any mark made by the testator with the intent that it operate as their signature satisfies the signature requirement
Testator’s signature - proxy signature
The testator’s signature may be made by another person at the testator’s direction and in their presence
If proxy signs own name as well, may be counted as an attesting witness
Order and location of signatures
The order of signing is not critical as long as the signing is done as part of a single contemporaneous transaction
In most states and under UPC, a will is valid if signed anywhere on the instrument, not just at the end
- if required to be at the end and signs elsewhere, some states hold it is void while others will still uphold it but disregard everything following the signature
Witnesses - competency
Most states require that the will be attested by two competent witnesses
Competency - at the time the will is executed, the witness is mature enough and of sufficient mental capacity that they could testify on these matters
- some states impose a minimum age
Witnesses - publication
States vary regarding whether the 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
Interested witnesses
At common law, a witness who was also a beneficiary was not competent and the will could not be probated unless 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
Creditors, fiduciaries under the will, and attorneys are not interested
Witnesses - presence requirement
Some states require the testator to sign the will in the witnesses’ presence and the witnesses to sign in the testator’s presence
Most states, witnesses do not need to attest in each other’s presence
Most courts use conscious presence test
- substantial minority use the scope of vision
Conscious presence test
The presence requirement is satisfied if
- each party was conscious of where the other parties were and what they were doing, and
- the act of signing took place within the general awareness and cognizance of the other parties
Scope of vision test
Requirement is satisfied only if the person was in such close proximity that they could have seen the signing had they looked
Presence and participating via phone
Many exam questions involve phone calls during the execution process
Participating via telephone or computer is not presence for the purpose of fulfilling execution requirements unless the state has specific e-will legislation
Attestation clause
An attestation clause recites the elements of due execution and is prima facie evidence of those elements
Not required but useful if a witness forgets or misremembers the facts surrounding the execution
Self-proving affidavit
A self-proving affidavit recites that all the elements of due execution were performed and is sworn to by the testator and witnesses before a notary public
Functions like a deposition and eliminates the need to produce the witness in court years later
Signatures on affidavit and signatures on will
Jurisdictions vary as to whether the self-proving affidavit is a separate document executed after the will (so two sets of signatures are needed) or whether it can be incorporated into the will itself (so one set of signatures is needed)
Many states authorize both methods
Majority view is that the signatures can serve as signature on will itself
Notarization
Some states and the UPC allow notarization to substitute for the attestation of witnesses
Harmless errors
Even though a will is not executed in accordance with all the required statutory formalities, UPC gives the court the authority to ignore harmless errors
Will be given effect if the will proponent establishes by clear and convincing evidence that the testator intended the document to be their will
Holographic wills
A holographic will is one that is entirely in the testator’s handwriting and has no attesting witnesses
States vary with regard to how much material may be typewritten before it no longer qualifies as holographic
- most states find that ok as long as portion not in handwriting is not material
Must contain a testator’s signature, but need not be at the end of the will - nickname, first name, even initials can constitute
Recognized by a majority of states
Changes in will - attested will vs holographic will
Most states that recognize holographic wills will give effect to handwritten changes made by the testator after the will is completed
In contrast, interlineations, changes in beneficiaries, amounts, etc, made after the execution of an attested will are usually not given effect
- and may work a revocation
But if changes are made to an attested will in a jurisdiction that recognizes holographic wills
- if reqs are met, often these changes are construed as a valid holographic codicil
Oral wills
Most states and UPC do not recognize oral wills
Small number of states that allow oral wills do so only for the disposition of personal property and only if made by
- soldiers or sailors (with some states requiring an armed conflict in progress), or
- any person during their last sickness or in contemplation of immediate death
Two or more witnesses to the spoken words are often needed
Attorney liability for negligence
In most states, an attorney’s duty runs not only to the client but also to the intended beneficiaries of the attorney’s services
- can sue the attorney for negligence or as third-party beneficiary
So can sue for negligent preparation or execution of a will
Significant number of states still require privity
Negligent preparation or execution of a will - SOL
SOL begins to run on the date of the decedent’s death
- not on the date it was executed
