Execution of wills Flashcards
requirements for a valid will
1) 18 years old
2) signed by testator)
3) 2 attesting witness (disinterested witness)
4) each witness must sign in TESTATORS presence
5) of sound mind
can t direct another in her presence to sign for their signature of execution of will
yes
things IL does NOT require for valid will
1) T sign at foot or end of will
2) witnesses know they are witnessing a will
3) T sign in witnesses’ presence
4) witnesses sign each others presence
In IL do the witnesses need to know they are signing a will
NO
does it matter that the 1 of the witness signed before T signed
NO
- Exact order of signing is not critical when the execution ceremony is CONTEMPORANEOUS TRANSACTION
In IL do the witnesses have to sign in EACH OTHERS presence
no
for execution of wills, when is the exact order of signatures not critical
when the execution ceremony is CONTEMPORANEOUS TRANSACTION
what is the requirement that T’s siganture appear on will
any mark intended as T’s mark is sufficient and satisfies the signature requirement
under the UPC and majority rule what is required for signing in “testators” presence
conscious presence test: not necessary that T should actually see the witnesses when they sign
in IL what is required for signing in the “testators presence”
witnesses must be withing T’s LINE OF SIGHT
- T does not have to see W sign BUT W MUST BE W.I UNINTERRUPTED SCOPE OF T’S VISION when they sign, so that T could have seen them IF HE LOOKED
can an attorney be held liable for negligent prep of will in minority of states
NO!
- b/c there is no privitiy of K
in IL can an atty be held liable for negligent prep of will
YES, privity of K has been rejected as a defense and the atty’s duty also runs to INTENDED BENEFICIARIES of atty services
does an interested W destroy a will
NOOOOO.
- Never destroys validity of will, only limits what interested W can get
what if a W is an interested party
looses legacy (right to get)
when does an intested W not lose its right to inherint
1) supernumrary rule (2 other disintersted W) OR
2) W would take share of estate, can take the lessor of
(a) bequest given by will or
(b) INTESTATE SHARE
in the majority of states can an interested W be entitled to compensation for services as executor>
YES
-
In IL can an interested W be entitled to compensation for services
NO COMPENSATION allowed if necessary witness of will
does the noncompensation of interested W apply to bank or law firm?
NO.
in the majority of states does an interested W statute void a legacy of a spouse
NO, most states only a bequest to the W herself triggers statute
In IL does an interested W statute void a legacy of a spouse
YES. bequest to W spouse is VOID
In IL are holographic wills allowed
NO. Must be signed by at least 2 attesting W’s
exam tip for holographic will
1) discuss majority rule of handwritten rules then
2) discuss IL
ex of conditional will
“if anything happens to me on my trip then to…”
what to do if an example of conditional will
1) CONDITIONAL WILL: probate should be denied b/c condition did not occur
2) MOTIVE OR INDUCEMENT FOR MAKING A WILL: simply motive to make will in first place
- Argue both sides
what is the doctrine of integration
all pages that were intended to be part of a will and were present at the time of testator an witness signed the last page comprise the D’s will.
- Th pages do not have t be stapled together, an the T and W’s need not sign each page.
presumption of integration arises when
there is an internal coherence by provisions running from 1 page to the next.
when is influence not undue
unless the free will of the T is destroyed and the resulting testamentary disposition reflects the desires, not of the testator, but of the party exerting undue influence.
what does finding of fraud require
showing that the T has been willfully deceived as to the character or content of the instrument, as to the extrinisic facts that would induce the will or a particular disposition, or with respect to facts material to a disposition.
when does fraud in the execution occur
when there is a misrepresentation as to the nature fo the contents of the instruments
when does fraud in the inducement occur
when the T intends to execute the instrument as his will and to include the particular contents of that instrument, but he is fraudulently induced into making this will, or some particular gift therein, by misrepresentations as to facts which influence his motivation
does UPC and majority of states allow holographic wills
yes
UPC/ Majority: for when holographic will is valid
where all or most of the will was in the testators handwriting and signed by T
what is a codicil
amends, alters, or modifies a previously executed will
when is a will that is republised
a will as having been executed (republished) on the date of the last validly executed codicil. To be republished the first will must have been validly executed
can a will that was not properly executed be republished
NO. to be republished the first will must have been validly executed.
Is a validly executed codicil viewed as impliedly incorporating a defective will by reference
yes, thus validating a will.
Can an invalid will be republished
No.
requirements for incorporation by reference
1) document is in existence at time of execution
2) reasonably describe the document
3) will manifests intent to incorporate the document.
what 2 things to thing of when a former will was not properly executed but new writing occurs
1) republished (a will that was not properly executed cannot be republished)
3) a valid executed codicil can make a will valid if executed on the will and proper.
For holographic wills signature requirement
many states consider handwritten name in the body of will to be valid signature
Holographic wills: do many states consider handwritten name in the body of the will to be a valid signature
YES
what is doctrine of integration
the process of embodying several sheets of paper or documents into a single entire will, validated by a single action of execution
What is required for doctrine of integration
all of the pages that were intended to be part of will and were present at the time of testator and witness signed the last page comprise the decedent’s will.
- The pages do not need to be stapled together and the witnesses do not need to sign every page
for integration, do the pages need to be stapled and does each witness need to sign each page
NO
- a presumption of integration arises when there is an internal coherence by provisions running from one page to the next.
