execution of wills Flashcards
will
A will is an instrument executed with certain formalities that usually directs the disposition of a person’s property at death.
A will is revocable during T’s lifetime and operative at death.
codicil
A codicil is a supplement to a will that modifies it.
beneficiary’s expectancy
Because a will is not operative until the testator’s death, a beneficiary has an expectancy and not a property interest until that time.
statutory formalities
- T must be at least 18 years old and of sound mind
- Will must be written (not oral)
- … with testamentary intent (not a sham)
- T must sign the will in witnesses’ presence (any mark, initials, X will serve as signature if so intended. Signature may be another person at T’s direction in T’s presence)
- Two attending witnesses who witness T’s signing in T’s presence (or T’s acknowledgement of previous signature or will)
testamentary intent
Testator must have present intent that the instrument operate as his will.
presence
minority rule - scope of vision test (only if they could see T sign if they were to look)
UPC and majority - conscious presence test (If they are conscious of where he was and what he was doing.)
signature for T
Any mark, initials, X will serve as signature if so intended.
holographic will
A holographic will is one that:
1. is entirely in T’s handwriting,
2. has no attesting witnesses, and
3. contains T’s signature (need not be at the end of the will)
About half the states - not allowed, and not entitled to probate unless 2 attesting witnesses
UPC and others - valid if material provisions (words that identify the property and the beneficiaries who are to receive it) are as above.
will validity for property in a different state
common law - not valid if doesn’t comply w/state X law
UPC and majority - ok if will complies state law of 1 or more:
1. Place of execution
2. Domicile at death
3. Domicile at execution
interested witness
older majority rule - having an interested witness does not deny probate of the will, but the beneficiary-witness loses legacy UNLESS
1. Two disinterested witnesses (supernumerary rule) OR
2. Beneficiary-witness would be an heir if there were no will. B-W takes the lesser of i) amount given in will or ii) intestate share
UPC and modern - no interested witness rule
self-proved wills
At time will is signed by T and attesting witnesses, T and witnesses 1) sign self-proving affidavit 2) under oath 3) before a notary. Formalities of execution are conclusively presumed (but not not mental capacity, lack of fraud, undue influence, etc)