Execution of Wills

Question 1

What are the requirements of a valid will?

Answer 1

Writing signed by the testator

Two or more witnesses

Testator has present testamentary intent

Question 2

Must an entire will be in writing?

Answer 2

Yes, can also be handwritten, if the signature and witness requirements are met

Question 3

What are the two different location of signature rules? (States do things differently, what are the two ways they do the location requirement)

Answer 3

At the end of the will or it is invalid
Or
Anywhere on the will, but the portion of the will after the signature is invalid

Question 4

What is the rule for the form of the testators signature?

Answer 4

testator’s formal name is not required if the name used indicates Testator’s intent

Question 5

What is the rule for a signature on the testators behalf?

Answer 5

Permitted by a person in testator’s presence and at testators direction

Question 6

What are the capacity of a Testator requirements?

Answer 6

1) testator is over the age of 18
2) of sound mind
Capacity is presumed and Testator meet capacity if they know:
1) nature and extent of property
2) Persons who are the natural objects of T’s bounty
3) disposition she is trying to make, and
4) testamentary plan

Question 7

How many witnesses must witness the signing of a will?

Answer 7

at least two, some states require three

Question 8

What is the requirement for witnessing a will? (Generally and under UPC)

Answer 8

Generally - must sign in presence of witness
UPC - Testator can acknowledge signature to Witnesses, witnesses need not be present at the same time

Question 9

If a will is signed by two witnesses what does this do?

Answer 9

• there is no need for an attestation clause
  -witnesses need not sign at the end of the will
  -witnesses must sign in the presence of testator
• Under UPC: W’s may sign within a reasonable time after witnessing T sing or acknowledge the will

Question 10

What is the knowledge requirement of a testator signing a will?

Answer 10

Testator must know they are signing a will but need not know the contents

Question 10

What does “in the presence of witnesses” mean?

Answer 10

Traditional Line of sight test: T and Ws see, or have the opportunity to see, each other sign the will

Modern Conscious-presence test: T and W must be aware through any sense that each is signing the will

Question 11

What is the age and competency requirement of a Witness?

Answer 11

W had sufficient mental capacity/maturity to comprehend the value of the act of witnessing, determined at the time of signing

Question 12

What is the Interested Witness Doctrine and what are the three approaches?

Answer 12

IWD - applies when a witness receives a gift under the will

Common Law - an interested W is not competent as a W, the will is invalid unless there are two uninterested witnesses

Purge Theory - a gift to W is denied to the extent of the amount in excess of W’s intestate rights

UPC - interested W doctrine is abolished

Question 13

What is testamentary intent?

Answer 13

Testator must execute a will with present testamentary intent, must understand that he is executing a will, and intend that it have testamentary effect

Testator must generally know and approve of the will’s contents, but need not understand all provisions

Question 14

Integration

Answer 14

a will consists of all pages present at the execution and intended to be a part of the will

Question 15

What are the statutory compliance requirements for the formalities of a will under the common law vs UPC

Answer 15

Common law requires strict compliance

UPC - Substantial compliance if there is clear and convincing evidence of testator’s intent

Question 16

Define a Holographic will

Answer 16

a will in testator’s handwriting

Question 17

What are the requirements of a Holographic will

Answer 17

Must be signed by testator (proxy not permitted)

Witnesses are not required

Date (sometimes required - state by state)

Testamentary intent (some states established by reference to printed parts of the will or extrinsic evidence)

Handwritten changes after will completed are effective

Question 18

What are the two ways states approach handwritten (Holographic) wills?

Answer 18

1) Entire will must be in Testator’s handwriting
2) UPC states - only the material provisions must be in Testator’s handwriting (a filled-in printed form)

Question 19

Define a “self-proved” will and the Effect of it

Answer 19

A self-proved will is acknowledged by testator and affirmed by witnesses before a court official

Effect: removes the need for testimony of the attesting Witnesses at a formal probate proceeding

Question 20

Define Nuncupative wills

Answer 20

Oral wills

Question 21

Are Oral (noncupative) wills permitted?

Answer 21

Most states (UPC) - no they are not

Some States - permitted, but valid for disposition of limited personal property made in contemplation of immediate death

Question 22

Define a Codicil

Answer 22

A change or addition to a will

Question 23

What are the execution requirements for a codicil?

Answer 23

The same formalities as for a will must be observed

Question 24

What is the effect of a Codicil?

Answer 24

republishes the will as of the date of the codicil was executed

Question 25

Can a properly executed Codicil validate and invalid will?

Answer 25

Yes it can

Question 26

What are the 7 will substitutes?

Answer 26

1) revocable trusts
2) pour-over wills (a devise of Testators property to a trust created during T’s life)
3) Bank accounts and securities registered in beneficiary form
4) payable-on-death clause in contract
5) Life insurance (policy proceeds are not part of D’s estate unless payable to the estate as beneficiary)
6) Deeds (unconditionally delivered to the grantee during D’s lifetime or delivered to an escrow agent during D’s lifetime with instructions to turn over to grantee upon D’s death)
7) Trotten Trusts (A type of revocable trust set up with a bank)