Execution of Wills Flashcards
Capacity - Age
18 years or older
Capacity - mental capacity
At the time of execution lacks
* nature of the act
* Nature/Character of property
* Natural object of his bounty
* Plan of the attempted disposition
Testamentary Intent
Testator must understand they are executing a will and intend testamentary intent
Attested Wills
Must be in writing and have a signature in the presence of some other person
Witnesses - Majority Approach
Will must be signed in the joint presence of and attested to by two witnesses
Witnesses - UPC Approach
- Witness do not need to be present at the same time
- T does not to sign in presence, as long as he achknowledges his signature to them before they sign w/i a reasonable time
Interest Witness - Common Law
Witness with financial interest is and “interested witness” and is not competent to be a witness.
If they are a witness, will is not validly executed.
Interested Witness - Modern Approach
Only the portion of the will that provides the gift to the interested witness that is in excess of intestatacy rights is invalid
Interested Witness - UPC
UPC has abolished the interested witness doctrine
Substantial Compliance - Common Law
At common law, strict compliance with formalities is required
Compliance - UPC
If not in compliance with law, will be treated as valid if there is clear and convincing evidence the testator intended for document to serve as his will and has **substantially complied ** with the required formalities
Holographic Wills
- T must handwrite material provisions (beneficiaries and items)
- T must sign the instrument
- Testamentary intent is clear
Can be revoked by holographic changes, must be signed under UPC
Codicils
Supplement to a valid will that alters, amends, or modifies the will
Must be executed with the same formalities as wills
Codicil - Republication Date
Valid codicil republishes the will as of the date of the codicil
Codicil - Curative Abilities
A valid codicil executed after OG will may cure problems that existed in the OG execution (ie # of witnesses or interested witnesses)
Holographic Cocicil
Vallid will can be altered, amended, or modified by a holographic will
Conditional Wills
- Not favorable to courts
- If possible, courts will contrue such language as mere explanation or intstruction, rather than a condition
Will Substitutes
- Trusts
- Pour-over wills
- Deeds (must have present intent to convey)
Conflict of Laws - Common Law
Determined under the law of the state where the T was domiciled at the tme of his death
Conflict of Laws - UPC Approach
Determined by
1. under the law of the place where it was executed; OR
2. if it was valid where the testator is domicialed, has a place of living, or is a national at the time of death
Conflict of Laws - Personal Property
Law of place where T was domiciled at death
Conflict of Laws - Real Property
Law of place where property is located (is law of the Situs)
