Execution of Wills

Question 1

What constitutes a will?

Answer 1

A will is an instrument executed with certain formalities that usually directs the disposition of a person’s property at death. An instrument appointing a personal representative or revoking an earlier will can count as a will.

Question 2

Is a will revocable?

Answer 2

Yes, during the testator’s lifetime.

Question 3

What is a codicil?

Answer 3

x

Question 4

What is a beneficiary’s interest prior to a testator’s death?

Answer 4

A will doesn’t become operative until death, so until the testator dies a beneficiary has no property interest in bequeathed property, just an expectancy.

Question 5

What is the required testamentary intent?

Answer 5

The testator must have present intent that the instrument operate as the will.

Question 6

Are promises to make a will in the future or ineffective deeds given effect as wills?

Answer 6

No.

Question 7

Is parol evidence admissible to show that an instrument was not meant to have effect?

Answer 7

Yes

Question 8

When it is unclear whether an instrument was intended to be testamentary, when will testamentary intent be found?

Answer 8

Testamentary intent will be found only if it is shown that the testator (1) intended to dispose of the property, (2) intended the disposition to occur only on their death, an (3) intended that the instrument in question accomplish that disposition.

Question 9

What is a conditional will?

Answer 9

A conditional will is one that provides that it is Ito be operative only if a stated condition is satisfied.

Question 10

Will a court give a conditional will effect if the condition does not occur?

Answer 10

A court may interpret what appears to be a condition as merely expressing the motive for making the will and might give the will effect anyway.

Question 11

Is parol evidence admissible to prove a will absolute on its face was meant to be conditional?

Answer 11

No

Question 12

What is the required testamentary capacity?

Answer 12

The testator must be at least 18 years old and of sound mind at the time they make the will.

Question 13

What is required for a will to be valid and admissible in probate?

Answer 13

To be valid and admissible to probate a will must meet the formal requirements of the relevant state statute. The formalities typically require:

(1) Signature by a testator or by another at the testator’s direction and in their presence
(2) Two attesting witnesses
(3) The testator signs in the witnesses’ presence
(4) The witnesses sign in the testator’s presence

States often also require that the will be published (declared as the will to the witnesses) and that the witnesses sign in front of each other.

Question 14

When is a will valid under the UPC?

Answer 14

If either attested by two competent witnesses or signed by a notary.

Question 15

What fulfills the signature requirement?

Answer 15

Any mark affixed by the testator with the intent that it operate as their signature (includes signatures made as by proxy signer)

Question 16

Can a testator’s proxy signer also be a witness?

Answer 16

Yes

Question 17

Is the order of signing important?

Answer 17

No, the witnesses and testator can sign in any order as long as part of a single contemporaneous transactions

Question 18

Does the signature need to be on a particular part of the document?

Answer 18

Under the UPC and in most states, a will is valid if signed anywhere.

Some states require that the will be signed at the end. If not, the will will either be void or everything below the signature will be invalid

Question 19

What satisfies the presence requirement?

Answer 19

Most states use the “conscious presence” test to determine whether someone is in another’s presence. Under this test, the presence requirement is satisfied if each party was conscious of where the other parties were and what they were doing and the act of singing took place within the general awareness and cognizance of the other parties.

A substantial minority of courts use the “scope of vision” test, which states that the requirement is satisfied if the person was in such close proximity that they could have seen the signing if they had looked.

Question 20

Does participation by phone or computer fulfill the presence requirement?

Answer 20

No

Question 21

What witness competency is required?

Answer 21

The witness must be, at the time of execution, mature enough and of sufficient mental capacity that they could testify in court about the matter

Question 22

Is a witness who is a beneficiary also competent?

Answer 22

Common law: No, and a will cannot be probated unless there were 2 other uninterested witnesses

New rule (all states): The will is still valid, but the bequest to the interested witness will be void unless she is supernumerary or would have taken the share even if the will had not been probated.

UPC: Gifts to interested witnesses not purged.

Question 23

What is an attestation clause?

Answer 23

An attestation clause recited the elements of due execution an is prima facie evidence of those elements (useful if a witness is forgetful)

Question 24

What is a self-proving affidavit?

Answer 24

A self-proving affidavits recites that all elements of due execution were performed. It is sworn by the testator and witnesses and notarized. It functions like a deposition and eliminates the need to later produce the witnesses in court. The signatures on the affidavit may serve as those needed on the will itself.

Question 25

Under the UPC, what is the consequence of a will’s failure to be executed in accordance with all required statutory formalities?

Answer 25

A court has the authority to give the will effect if the errors are harmless. A defectively executed will may be given effect if the will proponent establishes by clear and convincing evidence that the testator intended the document to be their will.

Question 26

What is a holographic will?

Answer 26

One entirely in the testator’s handwriting and has no attesting witnesses. They are recognized by the UPC and majority of states.

Question 27

What must a holographic will contain to be effective>?

Answer 27

It must contain the testator’s signature but it need not be at the end of the will. A nickname, first name, and even initials suffice as the signature.

Question 28

Are handwritten changes made to holographic wills by the testator given effect?

Answer 28

Yes, by the states that recognize holographic wills

Question 29

Are interlineations, changes in beneficiaries, amounts, etc made after the execution of an attested will given effect?

Answer 29

Not usually and they may work a revocation. However, in a jurisdiction recognizing holographic wills, t here changes may be construed as a holographic codicil.

Question 30

Are oral wills recognized?

Answer 30

Not in most states or the UPC. The minority who do only allow them to dispose of personal property and only if made by (1) soldiers or sailers (sometimes only in wartime), or (2) any person in contemplation of immediate death. There must be 2 witnesses.

Question 31

What law is applied to determine the validity and effect of a will with regard to the disposition of real property?

Answer 31

The state where the real property is located

Question 32

What law is applied to determine the validity and effect of a will with regard to the disposition of personal property?

Answer 32

The state of the testator’s domicile at the time of death

Question 33

When is a foreign (out of state) will admissible to probate in another jurisdiction?

Answer 33

If executed in accordance with the law of (1) that jurisdiction, (2) the state where it was executed, or (3) the testator’s domicile at execution, or (4) the testator’s domicile at death

Question 34

Who may sue an attorney for negligent preparation or execution?

Answer 34

The client and the intended beneficiaries. Statute of limitations run on the date of the decedent’s death.