Execution of Wills

Question 1

testator doesn’t dispose of all prop

Answer 1

passes by intestate succession

Question 2

changing a will

Answer 2

can do so up until T dies

Question 3

for a will to be valid

Answer 3

• be a signed writing
• have witnesses
• testamentary intent

Question 4

signed writing

Answer 4

• entire will must be written or typed and must be signed by testator
• texas- signature can be located anywhere
• testator must intend her name to be on the will
• formal signature not required- could be initial

Question 5

capacity

Answer 5

• testator must be at least 18
• or married or in armed forces
• of sound mind

Question 6

witnesses

Answer 6

• will must be signed in the presence of at least 2 witnesses
• witnesses must also sign the document, though not necessarily at the same time

Question 7

witness presence- signature

Answer 7

• witnesses must sign in presence of T
• Must sign in presence of W
• witnesses must sign in the lifetime of the T
• Texas- “conscious presence”- party observing the act must be aware that act is being performed (dont have to actually see it)

Question 8

Interested witness

Answer 8

• has a direct financial interest under the will
• CL- IW was not competent to witness the will
• Texas- if an attesting W has direct financial interest under the will, it will not affect will’s validity
• specific bequest is void unless a disinterested witness testifies in support of the will
• may still take an intestate share no greater than the intended gift if the specific bequest is void

Question 9

Witness age

Answer 9

• over 14 at the time of signing

- competent at the time of signing

Question 10

self-proved will

Answer 10

• executing a SPA in addition to the will
• 1 step method requires the inclusion of certain language in the will and adherence to an execution ceremony
• no initial need for witnesses to appear in court to testify concerning the wills execution for admission to probate

Question 11

present testamentary intent

Answer 11

• testator must have present intent to make a testamentary transfer
• T must be 18 years old and of sound mind at the time of signing

Question 12

Strict compliance

Answer 12

• formality is missing, will is invalid
• common law
• Texas is strict compliance except with holographic

Question 13

substantial complaince

Answer 13

• modern view
• court will admit to probate a will that is missing a formality if there is C&C that the decadent intended the document to serve as a will
• Texas has not adopted the modern view

Question 14

holographic will

Answer 14

• informal, handwritten will
• do not need to be witnessed
• must be signed
• printed matter and any other marking not the T’s handwriting do not affect the validity of the will; will be disregarded
• material provisions must be in T’s handwriting
• still need intent

Question 15

codicil

Answer 15

• supplement to a will
• does not revoke the will
• must be executed with the same formalities as a will
• a formal will can be amended by holographic and holograph can be amended by a formal codicil

Question 16

will substitutes

Answer 16

• joint tenancy- has right of survivorship
• revocable trust- intervivos transfer
• pour-over will- distributes property under trust
• POD contract- distributes by an inter vivos transfer
• deed- inter vivos transfer

Question 17

joint wills

Answer 17

-single will executed by 2 people
-serves as a will for each of them
-

Question 18

reciprocal will

Answer 18

-separate wills executed by different people, but contain provisions that mirror one another

Question 19

revoking joint or reciprocal

Answer 19

• can enter into a valid K not to revoke them
• party can revoke but it opens the door for an interested party to bring a breach of K claim against the estate
• after 12/1/79, must be established by a written agreement that’s binding/enforceable OR by a will stating that the K not to revoke exists and including material provisions of K