Execution of Wills

Question 1

What are the basic requirements for a valid will?

Answer 1

It must be

1. actually signed by the testator (not an agent or just a mark),
2. in writing, and
3. made with a present testamentary intent.

OR

1. signed by another person on behalf of the testator or by the testator’s mark,
   
   1. in the presence of the testator,
2. in writing,
3. made with a present testamentary intent,
4. in the joint presence of two witnesses,
5. both of whom understand the significance of the act.

Question 2

Where can the signature be?

Answer 2

At the end of the will.

Question 3

What if there are writings after the signature?

Answer 3

They will not invalidate the portions of the will that appear before the signature, but they will fail as a codicil or amendment.

Question 4

When is a testator capable of making a valid will?

Answer 4

When they are at least 18 and of sound mind.

Question 5

What form can the signature take?

Answer 5

Anything (including an X) that indicates the testator’s desire to sign.

Question 6

What if the testator can’t/doesn’t sign?

Answer 6

The will will still be valid if

1. the testator directed a third party to sign AND
2. two witnesses are present.

Question 7

What additional requirements must be met when an agent signs on behalf of the testator?

Answer 7

1. There must be two witnesses.
2. The testator must declare to the witnesses that the document that they are witnessing is a will.
3. The witnesses must be of sufficient mental capacity and maturity, determined at the time of signing, to comprehend the value of the act of witnessing a will.
4. The witnesses do not have to be disinterested.

Question 8

What are the requirements for “present testamentary intent”?

Answer 8

1. Testator must, upon signing the will, understand that he is executing a will and intend that it dispose of property after his death.
   
   1. N.B.: If further act or writing is contemplated to make the will, then the writing is non-testamentary.
2. The testator must generally know and approve of the will’s contents.
   
   1. Does not require that the will be read or understood entirely.
   2. Testator can’t be making a funny joke tho.

Question 9

Is extrinsic evidence allowed in interpreting a will?

Answer 9

Yes, if there is ambiguity regarding testamentary intent.

Question 10

What is the doctrine of integration?

Answer 10

Establishes that the will consists of all pages that are present at the time of execution and that are intended to form part of the will, which can be shown either by physical connection of the pages OR by the ongoing nature of the language of the will.

Question 11

What is a holographic will?

Answer 11

A will that is completely handwritten and signed by the testator.

Question 12

Are holographic wills permitted in Pennsylvania?

Answer 12

Yes, as long as it is signed.

Question 13

Are witnesses required for a holographic will?

Answer 13

No, because it is actually signed by the testator.

Question 14

What happens if a holographic will is not dated?

Answer 14

The holographic will is still valid, but there is a rebuttable presumption that it will predate any other will signed by the testator.

If the testator lacked capacity at any time during which the undated will could have been executed, then there is a rebuttable presumption that the will was executed during a time of incapacity.

Question 15

How will testamentary intent be proved in a holographic will?

Answer 15

• By use of a printed form will OR
• By the use of certain language, like “I bequeath”

Question 16

Are oral (noncupative) wills allowed?

Answer 16

Nope.

Question 17

What is a codicil?

Answer 17

A supplement to a will that alters, amends, or modifies the will, but does not replace it.

Question 18

What requirements exist for a codicil to be valid?

Answer 18

The same requirements as for a will.

It republishes the will as of the date of the codicil, and may validate an otherwise invalid will if it refers to the invalid will with sufficient certainty to identify and incorporate it or if it’s on the same paper as the invalid will.

Question 19

When will a will executed outside of Pennsylvania be valid in Pennsylvania?

Answer 19

• If the will complies with Pennsylvania’s requirements.
• If the will complies with the law of the state where it was executed. OR
• If the will complies with the law of the state where the testator was domiciled at the time of execution or death.

Question 20

What are some will substitutes?

Answer 20

1. Revocable trusts
2. Pour-over wills
   
   1. A will with a clause wherein some or all of the decedent’s probate property is given to the trustee of the decedent’s inter vivos trust
   2. “I give the rest and residue of my estate to the trustee of my inter vivos trust, to hold and distribute pursuant to its terms.”
   3. This must meet certain qualifications.
3. Bank accounts and securities registered in beneficiary form
   
   1. Amounts in a joint bank account can be transferred to the “co-tenant” upon death, unless there is clear and convincing evidence of a different intent at the time the account was opened. If multiple survivors, divide it by how much they contributed, or equally. This cannot be changed by will.
4. Payable on death clauses
   
   1. Cannot be changed by will (mostly).
   2. Contract with a bank, employer, or some other individual or corporation to distribute the property held under the contract at the decedent’s death to a named beneficiary.
5. Life insurance
   
   1. Not part of the decedent’s estate, unless beneficiary is the estate.
6. Deeds
   
   1. This is an effective nonprobate transfer if it is delivered to the grantee prior to the grantor’s death, even if the grantor retains a life estate in his own favor, as long as the delivery is unconditional.