Execution of Wills Flashcards
Statutory Formalities for Execution of Will
1) Testator must be 18 or over
2) Will must be written with testamentary intent
3) Testator must sign the will (any mark will do)
4) Two attesting witnesses who witness testator’s signing, OR testator’s acknowledgment of previous signature or will
Special UPC provisions for Execution of Will Formalities
Under UPC, a court can validate a defectively executed will if the will proponent establishes by clear and convincing evidence that the testator intended the document to be his will.
Additionally, a will that is signed by the testator and a notary is valid without the need for any witnesses.
Portion of will follows the testator’s signature and the clause is present at time of execution
1) Some states: Everything above signature is good, everything below the signature is bad
2) UPC and majority: no problem, the will, including that clause, is valid
Portion of will follows the testator’s signature and clause added after execution
Uniform throughout entire U.S.: the will is valid but the addition is not.
Holographic Wills
UPC and some other states allow holographic wills if the material provisions are in the testator’s own handwriting and it is signed by the testator.
About half the states do not allow holographic wills
Material Provisions
Provisions that identify the property and the beneficiaries to receive it.
Presence Requirement for Witnesses
1) Scope of Vision test (line of sight): witnesses must see testator sign were they to look
2) Conscious presence test (UPC and majority rule): Witnesses are conscious of where T is and what T is doing.
Effect of will in different jurisdictions
UPC and majority: a will be given effect in an ancillary proceeding if one or more of the following tests is satisfied:
1) will is valid in place of execution
2) will is valid in domicile at death
3) will is valid in domicile at execution
Common law requires the will disposing of real estate to comply with the requirements of the state in which the property is
Interested Witness: 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 amount given in will, or intestate share
Interested Witness: 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.
Note: interested witness situation frequently raises undue influence issue.
Self-Proved Wills
At time will is signed by T and attesting witnesses, T and witnesses sign self-proving affidavit under oath before notary public. Affidavit recites all elements of due execution. Formalities of execution are conclusively presumed (but not mental capacity, lack of fraud, undue influence).
