Execution of Wills

Question 1

Codicil

Answer 1

Supplement to a will that modifies it

Question 2

Testamentary Intent

Answer 2

T must have present intent that the instrument operate as a will

Question 3

When testamentary intent unclear?

Answer 3

Intent will be found only if:

(1) T intended to dispose of the property
(2) T intedned the disposition occur only upon his death and
(3) T intended that the instrument in question accomplish the disposition

Question 4

Testamentary Capacity

Answer 4

T must be at least 18 years old and of sound mind at the time he makes the will

Question 5

Formalities of attested will

Answer 5

(1) Will or codicil must be signed by the T or by another at T’s direction and in T’s presence
(2) Two attesting witnesses
(3) T must sign the will in each of the witnesses’ presence (or acknowledge previous signature or will) and
(4) Witnesses sign in T’s presence

some states require: signature at the end, “publish” the will (declare to witnesses that doc. is will), and witnesses must sign in each others’ presence

Question 6

Conscious Presence Test

Answer 6

Presence requirement satisfied if each party was conscious of where the other parties were and what they were doing, and the act of signing took place within the general awareness and congizance of the other parites

Question 7

Interested Witnesses

Answer 7

ALL states provide that if one of the witnesses is also a beneficiary the will is still valid but the bequest to the interested witness may be void unless she would have taken a share if the will had not been probated

UPC: gifts to interested witnesses not purged

Question 8

UPC Harmless Error

Answer 8

Even if will not exeucted in accordance with all required statutory formalities, court has authority to ignore harmless errors

Defectively executed will can be given effect if proponent shows by clear and convincing evidence that T intended document to be will

Question 9

Holographic will

Answer 9

Handwritten will entirely in T’s handwriting and with no attesting witnesses

wills and codicils recognized by UPC and majority of states

Question 10

Interlineations after execution of attested will?

Answer 10

NOT VALID

May even be considered a revocation, unless jx recognizes holographic wills in which case it may be construed as a valid holographic codicil