Execution of Wills Flashcards
Testamentary Capacity
1) Testamentary capacity is required at the same time a will is executed or revoked, but not before or after that time.
a. Age (legal capacity): in order to make a valid will, one
must be i. married, ii. age 18, OR iii. emancipated.
b. Mental capacity (lower standard than that for contracting)
i. SC requires a “sound mind” to make a will,
meaning the testator knows
- the extent of his estate
- the natural objects of his affections,
and - the persons to whom he wishes to
leave his estate
ii. Unfairness: provisions in a will which are unnatural, unfair, unreasonable, or unjust are not of themselves enough to show capacity.
iii. Delusions: In SC, an insane delusion is not an independent ground for an attack upon a will, but the existence of an insane delusion can be considered in connection with the general issue of capacity. Sane delusions are akin to mistake and generally cannot affect the will.
Presumption of Capacity
Presumption of capacity: contestants bear the burden
of showing a lack of capacity. If contestants make a
showing of chronic insanity at the time the will was
executed, the incapacity is presumed to continue, and
the proponents of the will have the burden at that
point of showing a lucid interval at the time of the will’s
execution.
Permitted Testimony as to Capacity
i. Expert witness: medical diagnosis is not conclusive—the issue is still one for the trier of fact
ii. Subscribing witness: a witness to a will signs an attestation clause, attesting to the testator’s sanity, and he may testify to that effect without being an expert witness
Testamentary Intent
i. Extrinsic proof: if it is not clear whether a document is a will, extrinsic evidence is a will, extrinsic evidence is
admissible on the question of testamentary
intent.
Conditional Will
Conditional will: A conditional will is one conditioned on a specified event or contingency and is invalid if the contingency does not occur. If a will is unambiguously
conditional, extrinsic evidence is not permitted to show the contrary.
Undue Influence
Once a will has been proved, lack of undue influence is presumed, and the burden is on contestants to prove undue influence by clear and convincing proof.
(1) Coercion
a. A person’s influence upon the testator is sufficiently
undue so as to affect enforcement of the will only if the
defree of influence is so great as to prevent the free
exercise of judgment and choice by the testator.
b. Undue influence may be found even when the person
exercising the influence does not benefit directly under
the will
c. Even if a coercive environment existed at the time of
execution, if the testator has an unhampered
opportunity to revoke or amend his will after the will
was executed, the will may be valid.
(2) Unjust distribution: unjust, unreasonable, discriminatory reasons for gifts in a will are not alone sufficient to show undue influence.
(3) Motive: motive and opportunity by a beneficiary to influence a testator are not alone sufficient to prove undue influence.
(4) Confidential relationship: a confidential or fiduciary relationship between beneficiary and testator may create a presumption of undue influence, but this presumption does not shift the burden from the contestant.
(5) Susceptibility: capacity is a separate issue from undue influence, but courts have noted that the weaker the intellect, the greater the potential susceptibility to undue influence.
(6) Effect: a will or any part of a will which is the result of undue influence is void.
Mistake
(1) Mistake affecting testamentary intent
a. A person who signs a document ignorant of the fact
that it is a will lacks the intent to make a will.
b. It is rebuttably presumed that the testator knew and
approved of the contents of the will. Probate cannot be
denied for mistake if
i. the testator read the will;
ii. the testator had the will read to him; OR
iii. the will conformed to the testator’s
instructions or wishes.
(2) Mistake not affecting testamentary intent
a. Mistake of inducement: an erroneous belief in a state of
fact causing a testator to make a particular disposition
b. Mistake as to legal effect
c. Mistake in description: a mistake in describing property
or a beneficiary
Fraud
(3) Fraud in the execution: Misrepresentation made to the testator by another person regarding the nature or contents of a will renders it invalid.
(4) Fraud in the inducement: misrepresentation made to testator by another person of material facts in order to induce a particular disposition renders a will invalid.
Execution Requirements
A validly executed will must be
(1) in writing
(2) signed by either the testator or someone in his presence and by his direction
a. no specific requirement as to placement, though
customarily at foot of last page
b. proper in pen, pencil, stamp, printed, typewritten, by
initials or by mark
c. person signing for testator may also sign as a witness
(3) signed by two credible witnesses, each of whom must have seen either the testator’s signing of the will or his acknowledgement of his signature of his will (no holographic wills in SC, but may be probated if proper in the state in which originally executed)
a. knowledge of contents not required
b. may sign by initials
c. no witness testimony required if will is self-proving
d. witnesses are not incompetent because of religious
belief, prior criminal record, or inclusion as a beneficiary
under the will
Witness Beneficiaries
a. Purging statute: the share of a testator’s estate that may
be taken by an interested witness or by the spouse of
that witness is limited to the amount the beneficiary
would have taken had that will not been executed.
b. The purging statute does not apply to an interested
witness if there are at least two other competent and
disinterested witnesses
Choice of Law
a. Wills probated in other states are given full faith and
credit and deemed valid in SC, if the order of the other
state’s court includes a finding that the testator was
domiciled in that state at the time of death
b. A will executed in another state is valid and may be
probated in SC if the will was valid under the law in
effect at the time of execution in
i. the state in which the execution took place
ii. the state in which the testator was domiciled
at execution
iii. the state in which the testator was domiciled
at death
Republication by Codicil
(1) A codicil is a written amendment to a will and must be executed with the same formalities as a will. The codicil republishes the original will if the codicil is:
a. attached to the will when the codicil is executed; or
b. confirms the will (or at least its unmodified provisions.
(2) Republication may have the effect of
a. validating a defective will
b. validating a will previously revoked
c. removing objections to alterations in a will
d. removing predetermined child protections
e. validating a previously invalid incorporation by
reference
f. removing a purge imposed upon witness-beneficiaries
Integration
(1) Integration: all papers present at execution that are intended to be a part of the will are included in the will. It is not necessary that the papers be attached.
a. papers attached are rebuttably presumed to have been
present at execution.
b. alterations and interlineations are rebuttably presumed
to have been made after the will was executed and,
absent proof, are not part of the will.
c. blanks filled in are rebuttably presumed to have been
filled in prior to the execution of the will and, absent
proof to the contrary, are part of the will.
Incorporation by Reference
(2) Incorporation by reference: a writing not integrated into the will may be incorporated if
a. the writing is in existence when the will is executed;
b. the language of the will manifests an intent to
incorporate the document; and
c. the will sufficiently identifies the writing.
Separate Writing/Personal Property Memo
(3) Separate writing/personal property memorandum: tangible personalty may be disposed of according to writings referred to by the will but which are created or amended after the will is executed.
a. To qualify, the writing must:
i. be in the testator’s handwriting or signed by
the testator
ii. describe the items and devisees with
reasonable certainty
b. The validity of the writing is unaffected by the fact that
i. the writing was prepared before or after the
execution of the will.
ii. the writing was altered by the testator after its
the writing has no significance apart from its
effect upon the dispositions made by the will.
c. A separate memorandum may not dispose of money,
evidences of indebtedness, documents of title,
securities, or property used in trade or business
