Execution of Wills

Question 1

What constitutes a will?

Answer 1

A will is an instrument that dispenses with a person’s property at the time of their death. It has no binding effect until the testator’s death.

Question 2

What is a codicil?

Answer 2

An amendment to a will.

Question 3

When is a will valid?

Answer 3

A valid will requires:

1. Legal capacity
2. Testamentary capacity
3. Testamentary intent
4. Formalities

Question 4

When can testamentary intent be established?

Answer 4

When the testator intends an instrument to operate as will this can be show in two ways:

1. By the express terms of the will (“This is my, Jon Bean’s, last will and testament.”)
2. By extrinsic evidence showing that (i) the testator intended to dispose of real property, (ii) intended the disposition to occur only upon his death, and (iii) intended that the instrument in question accomplish this disposition.

Question 5

What is a sham will?

Answer 5

A will that looks like a will but was not intended to function as a will.

Question 6

Can a deed be a will?

Answer 6

No. If it was intended to convey land during the testator’s life time, it cannot function as a will.

Question 7

Can a will give benefits only on conditions?

Answer 7

Yes, but those conditions have to be expressly stated in the will.

Question 8

What are the criteria for “testamentary capacity”?

Answer 8

At the time the will was created, the testator must have been:

1. 18 or older.
2. sound mind

Question 9

What formalities do most states require?

Answer 9

1. Signed by the testator
2. Two attesting witnesses
3. The signature must be made in the witnesses’ presence
4. The witnesses must sign in the testator’s presence

AND sometimes

5. The testator must sign at the end of the will
6. The testator must publish the will, meaning he must declare to the witnesses that they are seeing the creation of a will and not something else.

Question 10

Does the testator need to sign before the witnesses?

Answer 10

No. As long as the signing all occurred during a contemporaneous transaction.

Question 11

What are unattested words?

Answer 11

Additions to the will after it is duly executed without being added in a proper amendment. They are void.

Question 12

What are the majority and minority views on the presence?

Answer 12

Majority: All that is required is that the parties signed within the general awareness and cognizance of each other.

Minority: The parties must be in such a proximity to each other that they could have seen each other sign if they looked.

Question 13

Under the UPC, what are sufficient witnesses?

Answer 13

Two witnesses OR a notary

Question 14

When are witnesses competent?

Answer 14

When they are mature enough and have the mental capacity required to understand and appreciate the nature of the act they witness. There is no minimum age.

Question 15

Can a beneficiary be a witness?

Answer 15

Yes. But,

Majority view: the beneficiaries interest is voided. But, it isn’t if there were two other competent witnesses. Also, if the beneficiary would have taken without a will he is given the lesser of his legacy or his intestate share.

Minority view (UPC): the will is valid and so is the gift.

Question 16

What is an attestation clause?

Answer 16

A clause in the will that recites the elements of due execution. It functions as prima facie evidence that the will was duly executed. It is useful in two cases:

1. A witness cannot remember attestation
2. A witness that misremembers the attestation

Question 17

What is a self-proving affidavit?

Answer 17

An affidavit that evidences the testator’s intent. It must be signed by a notary. It can be admitted into probate as evidence of the legitimacy of the will.

Question 18

Harmless error:

Answer 18

Under the UPC, a failure to meet all the criteria of a will can be viewed as harmless error if enough evidence is introduced in probate to show by clear and convincing evidence that the testator intended the document to be his will.

Question 19

What is a holographic will?

Answer 19

A will written entirely in the testator’s handwriting without being witnessed.

Question 20

What are the elements of a holographic will?

Answer 20

1. Entirely in the testator’s handwriting
2. Signed by the testator
3. Intent that the writing be a will, and not to refer to another document. Extrinsic evidence can be introduced to show this.

Question 21

Can a holographic will be amended without attestation?

Answer 21

Yes.

Question 22

Are oral wills permissible?

Answer 22

No.

Question 23

Can an attorney be held liable for a faulty drafting?

Answer 23

Minority: No. The attorney was in privity with the testator and not with the beneficiaries.

Majority: Yes. Privity is no defense.

Question 24

How can a contestant contest testamentary capacity?

Answer 24

They must show that when the will was executed, the testator did not have sufficient capacity to: (i) understand the nature of his act (ii) know the nature and character of his property (iii) know the objects of his bounty or (iv) relate these factors to formulate a disposition of property according to a plan.