Execution of wills Flashcards
What are the statutory requirements for the execution of a valid will?
- The will must be written
- The testator must sign (or mark) the will at the end
- The signing must be in the presence of at least two witnesses
- The witnesses must sign the will in the presence of each other and the testator
Do all of the statutory requirements need to be met?
Florida mandates strict compliance with its statutory provisions which can be found in Fla. Stat. § 732.502
Written requirement
Not oral-nuncupative or non-attested holographic wills
Holographic will
A will that is entirely in the testator’s handwriting and is not witnessed
A holographic will is that which is non-attested, which is forbidden in Florida
Nuncupative wills
Oral declaration, they generally require witnesses like a gift causa mortis and are not acceptable in Florida
Testator’s signature requirement
The testator must sign at the logical end of the will and after all dispositive provisions
It may be before the attestation clause, however
A proxy may sign for T, but must be in testator’s presence
Proxy does NOT have to include his/her own name, BUT probably should
Witness requirement
Anyone is competent to be a witness, so long as they have the ability to understand and be understood
In Florida, the testator can sign before presenting the will to the witnesses but he must acknowledge his own signature before the witnesses sign
Under the UPC, a will could still be valid if the testator signs the will not in the presence of the witnesses if the testator acknowledges his will or his signature on the will
Presence requirement
Line of vision test: must have ability to physically see the signing
Conscious presence test: party must mentally perceive that another is signing; not sufficient to know witnesses in the room, must know other is signing (this is the UPC test)
Qualifying as a witness
Under § 732.504, anyone may be a witness who is competent
Competency is judged by the person’s ability to understand and be understood concerning the witnessing of the will
This can even be a beneficiary, but it carries with it the risk of being challenged for undue influence if the testator chooses to do so
Having an interest in the estate does not disqualify a witness
Purging statutes
Some states (not Florida) have purging statutes that reduce or eliminate devises to interested witnesses
The interested witness may be prevented from receiving any property devised to him or her or may be limited to receiving the lesser of the devise or an intestate share
Testimonies and attestation
Although not required, a testator may add a Testimonium and an Attestation Clause to a will
Attestation clause
states the basic facts that occurred during execution of the will (day, date, sign, sealed, published, etc.)
Can also include the number of pages
Signed by witnesses
Testimonium clause
may resemble the following: “In Witness Whereof, I have hereunto subscribed my name…”
Self-proof affidavit
A sworn statement that the execution of the will conformed to Florida law
This affidavit is not required, although it is strongly recommended
Sworn testimony, by testator AND witnesses, that will was executed in compliance with laws.
At time of execution OR later
Notarized (Notary CANNOT swear as to his OWN testimony)
Allows will into probate WITHOUT witness testimony
Who has the burden of proof if the validity of a will is contested?
If the validity of the will is contested, the proponent of the will has the burden to establish prima facie that the will was properly executed. Fla. Stat. § 733.107.
Protective function
bring people into your office to protect them from outside influence
Evidentiary function
evidence of what was signed; this becomes a problem if a change is made and no one remembers when the change was made (before or after the signatures); best thing would be to make a copy of the page where the change was made and have everyone sign the copy of the document, and then that would make it an original page of the will
Ritual function (cautionary function)
the idea is that we have a nice ritual that we go through so that we make sure the individual is aware of what he is doing and that he knows he will be dead when this document comes to light
Four functions of the formalities of a will
- Protective function
- Evidentiary function
- Ritual function (cautionary function)
- Channeling function
Channeling function
we want the individual to express themselves with language that the court will understand; so we are going to channel them into legalese that will accomplish their objective
Integration of the will
Use page numbering system (1 of 2, 2 of 2)
Testator signs/initials EACH page
Staple and bind will
This prevents unauthorized alterations
Codicil
an addition or supplement that explains, modifies, or revokes a will or part of one
