Execution of Wills Flashcards
What are the general requirements for making a will?
The testator must be at least 18 years old, or emancipated, and of sound mind.
What kind of intent is required in order for a will to be valid?
The testator must PRESENTLY intend (as evidenced by face of will) that the particular instrument operate as her will.
What is necessary for valid execution of a will or codicil (a supplement to a will)?
1) the will / codicil must be signed by the testator (or another person in her presence and at her direction);
2) that signature must be made in the JOINT presence of two witnesses
3) and those witness must themselves sign the will/codicil in the testator’s presence
What suffices for a testator’s signature?
Does the signature need to be at the end of the will?
Any mark affixed by the testator with the intent that it operate as a signature.
No.
When do courts judge the competency of witnesses to a will?
Can a notary public serve as a witness?
At the time of attestation (i.e. in court), NOT at the time of the signing
Sho’ thang!
Is it necessary that the testator actually see the witnesses when they sign?
No, provided that she is aware of where they are and what they are doing.
Can beneficiaries of a negligently prepared or executed sue the attorney?
Nope. Only clients can sue their attorneys for negligent representation. l
What is the effect of an attestation clause, which recites the elements due execution?
It raises a presumption that the will was validly executed and is prima facie evidence of the facts in the will
What does it mean for a will to be “self-proved”? What’s the appeal?
This means that the witnesses sign a sworn affidavit reciting all of the elements they would testify to in open court.
It serves the same function as a deposition or interrogatory, and is accepted as if it had been given in court.
When may a WILL be treated as validly executed despite less than full compliance?
What requirements CANNOT be dispensed with?
When the proponent of the will establishes by clear and convincing evidence that the decedent intended the document to constitute his will. All interested parties must be joined in the action, which must be brought within a year of the testator’s death
The requirements regarding the testator’s signature, except where: (1) two persons mistakenly sign each other’s will; (2) the testator signs the self-proving affidavit but not the will itself.
What are holographic wills?
When are they enforceable?
When will holographic wills be admitted to probate, even if not enforceable?
Handwritten and unattested wills.
When entirely in the testator’s handwriting and signed by him (as attested to by two witnesses)
When (1) they are written entirely in the handwriting of the testator and evidence his testamentary intent; and (2) the testator has capacity.
Does the existence of a typewritten text affect the validity of the holographic will?
No, provided that the typewritten portion can be disregarded without violating the testator’s intent.
Must the testator’s signature appear at the end of a holographic will for it be valid?
No. But there must be some formal closing statement at the end of the will indicating finality.
Who bears the burden of proof in demonstrating the will was properly executed? What is the applicable evidentiary standard?
The proponents of the will.
Preponderance of the evidence.
What is the difference between ex parte probate and inter partes probate?
In ex parte probate, there is no notice to interested party and, if the will is self-proved, there is no need to call attesting witnesses
Inter partes probate involves a full judicial proceeding with notice to interested parties and the right to a jury trial
