Execution of Wills Flashcards
Will
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.
When is a will revocable?
during the testator’s life
When does a will become irrevocable?
at the testator’s death
Are promises to make a will an effective will?
No
Conditional Will
a will that provides that it is to be operative only if a stated conditions is satisfied.
Are conditions in a conditional will always binding?
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.
How old must a testator be to make a will?
18 or older.
What are the formal requirements for executing a valid will?
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.
Under the UPC and most states, text of the will that is below the signature is . . .
valid.
Can a testator mark “X” as their signature?
Yes. The important thing is whether the testator intended the sign to act as their signature.
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?
They will be treated as one of the attesting witnesses.
Is the order of signing relevant?
No, so long as all writings are made in the same contemporaenous transaction.
What is the dominant test for determining whether witnesses are “present” for purposes of signing a will?
The Conscious Presence Test. The witnesses need only be conscious of the testator signing his will and the reason he is doing it.
Is participating in a phone call or computer conference “presence” for the purposes of signing one’s will?
No. Witnesses must be physically present.
Can a witness who is interested take under a will?
No, unless she was a supernumerary or would take from the testator if the testator died intestate.
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?
No. They are not considered interested parties.
What is a self-proving affidavit?
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.
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?
Yes. Signing a self-proving affidavit is the same as signing a will.
Holographic Will
a will that is entirely in the testator’s handwriting and has no attesting witnesses.
Must a holographic will contain the testator’s signature?
Yes, but it need not be at the end of the will.
Does the UPC recognize holographic wills?
Yes, along with most states.
A has a holographic will and after signing it, later makes handwritten changes to it. Are these valid?
Yes.
A testator to an attested will makes a change to her will as to the beneficiaries or something similar. Is this valid?
No. This might even evince a revocation.
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?
Yes. In jurisdictions which recognize holographic wills, handwritten changes to attested wills are considered holographic codicils.
Are oral wills valid?
Never.
Intended beneficiaries to a will can sue a drafting attorney for negligent drafting. When does the statute of limitations begin to run?
At the time of the decedent’s death.
Is a holographic will valid if it is attested to by the required number of witnesses?
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.
