Execution of Wills Flashcards
Statutory Formalities for Creation
- T Must be 18 or older
- Instrument must be executed with testamentary intent (instrument must be intended to be a will)
- T. must sign the will
- 2 attesting witness see T sign, or; T’s acknowledgment of previous signature or will
Special Uniform Probate Code (UPC) Provisions:
Under the UPC, a court can validate a defectively executed will (i.e., there is only one attesting witness) if the will proponent establishes by clear and convincing evidence that the testator intended the document to be his will. In addition, under the UPC, a will is that is signed by the Testator and a notary is valid without the need for any witnesses.
What happens if a portion of the will (e.g., clause naming personal representative) follows the testator’s signature?
A. Clause present at the time of execution
i. Some states: (wills must be signed “at the end”) - Some jurisdictions: everything above the signature is good, everything below is bad
ii. UPC and majority: - Most states and the UPC: All is good, there is no specified location that the testator sign
B. Clause added after execution
–The will is valid but the addition is not, cant add addtional provisions willy nilly
T writes a document in her own handwriting that reads: “This is my last will. I revoke all earlier wills. I leave everything to the YMCA.” T signs the instrument. Is it admissible to probate?
A. About half of states: Holographic will not allowed. Not entitled to probate unless two attesting witnesses.
B. UPC and some other states: If the material provisions are in T’s own handwriting and it is signed by her
-Special break to provisions in testators own handwriting (What are material provisions - Words of the property and beneficiaries who are to receive it)
T in hospital bed with contagious disease when will executed. Two witnesses in doorway, standing in hall; screen by bed hides their view of T. T says from behind screen, “This is my will. It looks OK; where do I sign?” After T signs, will brought out to hall. Witnesses hear T from behind the screen request them to witness. Witnesses sign in hall. Hs will been validly executed?
A. “Conscious presence” test (UPC, majority, better rule): Conscious of where T was/is and what he was doing, so Yes
B. “Scope of vision” test (minority rule): Only if they could see T sign were they to look, no impediment to visual conduct, so in this case No, did not see T
T is a domiciliary of Pennsylvania and owns some real estate in state X. While on vacation in Florida, T executes a will that meets the requirements for a valid will in Pennsylvania but not in state X. Later T dies after having changed his domicile to New York. Is the will valid for purposes of disposition of the state X real estate?
A. UPC and majority: YES - In an ancillary proceeding if one or more of the following are met: See Below (in the disjunctive)
B. Common law and a few remaining states: No - To control state X real estate the will has to meet the laws of state X
-Ancillary Proceeding -
-Place of execution (Florida)?
• Domicile at death (New York)?
• Domicile at execution (Pennsylvania)?
“I give to my faithful nurse Nell the sum of $30,000.” Nell is one of two attesting witnesses to the will. Is the will admissible to probate?
A: Older (majority) rule: Interested witness situation does not result in denial of probate of will, but beneficiary-witness loses legacy unless:
1) There were two disinterested attesting witnesses (supernumerary rule); OR
2) Witness-beneficiary would be an heir if there were no will, in which case she takes lesser of (i) amount given in will, or (ii) intestate share. Nell loses! - She fails the supernumerary test
B: UPC and modern trend: Interested witness rule abolished. “A will or any provision thereof is not invalid because the will is signed by an interested witness.” Nell wins!
Note: Interested witness situation frequently raises undue influence issue.
SELF-PROVED WILLS:
At time will is signed by T and attesting witnesses (or some time thereafter, in T’s lifetime), T and witnesses sign self-proving affidavit under oath before notary public. Affidavit recites all elements of due execution. Formalities of execution (but not mental capacity, lack of fraud, undue influence, etc.) conclusively presumed. - Notarize the execution of the will and no one can contest on want of formalities
What does probate of will mean?
The court process by which a Will is proved valid or invalid. The legal process wherein the estate of a decedent is administered.
What is a benefit to having the will signed by a notary instead of 2 witnesses?
Affidavit recites all elements of due execution. Formalities of execution (but not mental capacity, lack of fraud, undue influence, etc.) are conclusively presumed.
