Execution of Wills

Question 1

Will

Answer 1

an instrument executed with certain formalities that usually directs the disposition of a person’s property at death, although an instrument that merely appoints a personal representative or revokes an earlier will can be a will.

Question 2

When is a will revocable?

Answer 2

during the testator’s life

Question 3

When does a will become irrevocable?

Answer 3

at the testator’s death

Question 4

Are promises to make a will an effective will?

Answer 4

No

Question 5

Conditional Will

Answer 5

a will that provides that it is to be operative only if a stated conditions is satisfied.

Question 6

Are conditions in a conditional will always binding?

Answer 6

No. A court can construe a condition in a conditional will as a motive for writing the will, and thereby give the will effect even if the event does not take place.

Question 7

How old must a testator be to make a will?

Answer 7

18 or older.

Question 8

What are the formal requirements for executing a valid will?

Answer 8

The will must be 1) signed by the testator; 2) in the presence of at least 2 attesting witnesses; 3) who sign the will in the presence of the testator.

Question 9

Under the UPC and most states, text of the will that is below the signature is . . .

Answer 9

valid.

Question 10

Can a testator mark “X” as their signature?

Answer 10

Yes. The important thing is whether the testator intended the sign to act as their signature.

Question 11

If a person signs the will for the testator and at the testator’s direction, and alongside the testator’s signature they add their own signature, what effect?

Answer 11

They will be treated as one of the attesting witnesses.

Question 12

Is the order of signing relevant?

Answer 12

No, so long as all writings are made in the same contemporaenous transaction.

Question 13

What is the dominant test for determining whether witnesses are “present” for purposes of signing a will?

Answer 13

The Conscious Presence Test. The witnesses need only be conscious of the testator signing his will and the reason he is doing it.

Question 14

Is participating in a phone call or computer conference “presence” for the purposes of signing one’s will?

Answer 14

No. Witnesses must be physically present.

Question 15

Can a witness who is interested take under a will?

Answer 15

No, unless she was a supernumerary or would take from the testator if the testator died intestate.

Question 16

Where a creditor, fiduciary or attorney of the testator signs the testator’s will as a witness, are they precluded from collecting their respective debts from the testator’s estate?

Answer 16

No. They are not considered interested parties.

Question 17

What is a self-proving affidavit?

Answer 17

An affidavit which recites that all the elements of due execution were performed and is sworn to by the testator and witnesses before a notary public.

Question 18

Where a person signs a self-proving affidavit attesting to the legitimacy of a will, but does not sign the will, can their signature serve as one of the signatures necessary on the will?

Answer 18

Yes. Signing a self-proving affidavit is the same as signing a will.

Question 19

Holographic Will

Answer 19

a will that is entirely in the testator’s handwriting and has no attesting witnesses.

Question 20

Must a holographic will contain the testator’s signature?

Answer 20

Yes, but it need not be at the end of the will.

Question 21

Does the UPC recognize holographic wills?

Answer 21

Yes, along with most states.

Question 22

A has a holographic will and after signing it, later makes handwritten changes to it. Are these valid?

Answer 22

Yes.

Question 23

A testator to an attested will makes a change to her will as to the beneficiaries or something similar. Is this valid?

Answer 23

No. This might even evince a revocation.

Question 24

A jurisdiction recognizes holographic wills. A testator to an attested will makes handwritten changes to the will after it has been completed. Are these valid?

Answer 24

Yes. In jurisdictions which recognize holographic wills, handwritten changes to attested wills are considered holographic codicils.

Question 25

Are oral wills valid?

Answer 25

Never.

Question 26

Intended beneficiaries to a will can sue a drafting attorney for negligent drafting. When does the statute of limitations begin to run?

Answer 26

At the time of the decedent’s death.

Question 27

Is a holographic will valid if it is attested to by the required number of witnesses?

Answer 27

yes, even if holographic wills are prohibited under the law. This is because a holographic will that is attested does not meet the definition of a holographic will, and therefore is valid.