Execution of Wills

Question 1

Three Formal Execution Requirements for Wills

Answer 1

(1) Testamentary intent;
(2) Signed writing; and
(3) Witnessed

Question 2

Will Execution Requirement: Testamentary Intent

Answer 2

Testator must have PRESENT INTENT to make testamentary transfer

Must be at least 18 years old and of sound mind

Question 3

Will Execution Requirement: Signed Writing

Answer 3

Entire will must be WRITTEN and SIGNED by testator

Signature can be located anywhere in the will

Formal signature not required, but it must indicate testator’s desire to sign

Question 4

Will Execution Requirement: Witnessed

Answer 4

Will must be signed in joint presence of AT LEAST 2 WITNESSES

Witnesses must also sign the will

IN requires will be PUBLISHED (good enough for testator to sign will after it has been identified as testator’s will)

Question 5

Exception to Writing Requirement: Nuncupative Wills

Answer 5

Oral will

Permitted if:

(1) Testator facing imminent death;
(2) Value of personal property no more than $1,000; and
(3) Will declared in front of 2 witnesses and reduced to writing within 30 days

Question 6

Line of Sight Test

Answer 6

Parties must be able to see the act of signing the will

Ex: In the same room

Question 7

Conscious Presence Test

Answer 7

Party must be aware of the act, even if cannot see

Question 8

Interested Witness

Answer 8

Person with direct financial interest in the will may serve as witness

However, probate court will purge any gain in excess of what the witness would
take under intestate succession

Question 9

Exceptions to Interested Witness Rule

Answer 9

(1) There are TWO other disinterested witnesses; or
(2) Interested witness would take under intestate succession and the witness TAKES THE LESSER AMOUNT under intestacy or the will

Question 10

Holographic Wills

Answer 10

Handwritten wills ok, but still need two witnesses

Question 11

Codicil

Answer 11

Supplements a will

Does NOT replace the underlying will