Execution of Wills Flashcards
Will Requirements
- Signed writing
- Witnesses
- Testamentary Intent
Signature
- Entire will must be written or typed and signed by testator
- Signed at end or (some states) anywhere (but only controls what’s above it)
- Any mark intended to be signature allowed
Capacity
Testator must be at least 18 and of sound mind (measured at time of execution)
Witnesses
Most states require will be signed in the presence of at least 2 witnesses
Majority Rule- Signing
- Testator must sign or acknowledge the will in the presence of the witnesses; and
- Witnesses must sign in the presence of the testator
UPC- Signing
Witnesses must sign within a reasonable time of the original signature by the testator
Line of Sight
Traditional
Witness and testator must observe or have the opportunity to observe the signing
of the will
• I.e., they are both in the same room
Conscious Presence
Modern
Witness or testator must be aware act is being performed, even if cannot see
Interested Witnesses
CL- interested witness not competent
-> Purge theory- interested W doesn’t impact will validity, but court will purge any excess of what would be taken under intestate succession
UPC- abolished interested witness doctrine
Intent
Testator must have present intent to make testamentary transfer
Failure to Satisfy Formalities
CL/majority- strict compliance required
UPC/minority- substantial compliance; clear & convincing evidence decedent intended document to be will
Holographic Wills
-Informal; handwritten
-Don’t need witnesses
-Must be signed
UPC- material provisions must be in testator’s handwriting (others said any non-handwriting invalidated); allows extrinsic evidence of intent
Codicil
Supplement to a will
Will Substitutes
- Joint tenancy
- Revocable trust
- Pour-Over will
- POD contract
- Deed
