Execution of Wills Flashcards
What constitutes a will
A will is an instrument executed with certain formalities that is testamentary in character, revocable during the maker’s lifetime, and operative at the testator’s death.
A Codicil is a supplement to a will that modifies it.
Exam tip
Because a will is not operative until the testator’s death, a bene has merely an expectancy (not a property interest) until that time.
Testamentary intent
The testator must have the present intent that the instrument operate as his will. Promises to make a will in the future and ineffective deeds are not given effect as wills. Parol evidence is admissible to show that an instrument was not meant to have any effect.
Conditional will
Provides that it is to be operative only if a stated condition is satisfied, e.g. “if I do not return from this trip.” Note that a court might interpret what appears to be a condition as merely expressing the motive for making the will, and might give the will effect even if the condition does not occur.
Testamentary capacity
The testator must be of sound mind and at least 18 years old or an emancipated minor at the time he makes a will.
Formal requirements
In Florida, a will must be signed at the end by the testator in the presence of two witnesses, who must sign in the testator’s presence and in the presence of each other.
Testator’s Signature
Any mark affixed by the testator with the intent that it operate as his signature satisfies the signature requirement. The testator’s signature may be made by another person at the testator’s direction and in his presence.
If the proxy signer signs his own name as well, he may be counted as an attesting witness. The order of signing is not critical as long as the signing is done as part of a single contemporaneous transaction.
Signature at the end requirement
In Florida, a will must be signed at the end. This requirement is satisfied if the testator’s signature is physically in immediate juxtaposition to the will’s dispositive provisions.
Presence requirement
A minority of jurisdictions require the signing parties to be within each other’s “scope of vision” but the majority use the more liberal “conscious presence” test.
The Florida Supreme Court has not ruled on this, but lower courts seem to follow the “scope of vision” test.
Publication not required
Florida does not require a will to be published, i.e. identified to the witnesses as being a will.
Interested witnesses may take under will
At common law, a witness who was also a beneficiary was not competent, and the will could not be probated unless there were two other competent witnesses.
Most states now provide that the will is still valid, but the bequest to the interested witness is void.
Florida and the UPC have abolished the interested witness rule and allow interested witnesses to take under the will.
Attestation Clause
An attestation clause recites the elements of due execution and is prima facie evidence of those elements. It is useful in the event a witness forgets or misremembers the facts surrounding the execution.
Self-proving affidavit
Is sworn to by the testator and witnesses before a notary public. It functions like a deposition and eliminates the need to produce the witnesses in court years later. Signatures on the affidavit can serve as the signatures needed on the will itself.
Wills not recognized in Florida
Holographic wills (handwritten by the testator and signed but not properly witnessed) and oral wills, even if they were validly executed in another state.
About half of the states and the UPC recognize holographic wills.
Military testamentary instruments
A properly executed military testamentary instrument is a valid will in Florida.
The instrument must be executed:
- By a testator who is eligible for military legal assistance,
- In the presence of military legal assistance counsel, and
- In the presence of 2 disinterested attesting witnesses.
