Execution of wills

Question 1

What are the statutory requirements for the execution of a valid will?

Answer 1

1. The will must be written
2. The testator must sign (or mark) the will at the end
3. The signing must be in the presence of at least two witnesses
4. The witnesses must sign the will in the presence of each other and the testator

Question 2

Do all of the statutory requirements need to be met?

Answer 2

Florida mandates strict compliance with its statutory provisions which can be found in Fla. Stat. § 732.502

Question 3

Written requirement

Answer 3

Not oral-nuncupative or non-attested holographic wills

Question 4

Holographic will

Answer 4

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

Question 5

Nuncupative wills

Answer 5

Oral declaration, they generally require witnesses like a gift causa mortis and are not acceptable in Florida

Question 6

Testator’s signature requirement

Answer 6

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

Question 7

Witness requirement

Answer 7

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

Question 8

Presence requirement

Answer 8

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)

Question 9

Qualifying as a witness

Answer 9

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

Question 10

Purging statutes

Answer 10

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

Question 11

Testimonies and attestation

Answer 11

Although not required, a testator may add a Testimonium and an Attestation Clause to a will

Question 12

Attestation clause

Answer 12

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

Question 13

Testimonium clause

Answer 13

may resemble the following: “In Witness Whereof, I have hereunto subscribed my name…”

Question 14

Self-proof affidavit

Answer 14

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

Question 15

Who has the burden of proof if the validity of a will is contested?

Answer 15

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.

Question 16

Protective function

Answer 16

bring people into your office to protect them from outside influence

Question 17

Evidentiary function

Answer 17

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

Question 18

Ritual function (cautionary function)

Answer 18

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

Question 19

Four functions of the formalities of a will

Answer 19

1. Protective function
2. Evidentiary function
3. Ritual function (cautionary function)
4. Channeling function

Question 20

Channeling function

Answer 20

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

Question 21

Integration of the will

Answer 21

Use page numbering system (1 of 2, 2 of 2)

Testator signs/initials EACH page

Staple and bind will

This prevents unauthorized alterations

Question 22

Codicil

Answer 22

an addition or supplement that explains, modifies, or revokes a will or part of one