Execution & Revocation of Wills Flashcards
Valid will requirements
- Writing signed by T
- Two or more witnesses
- T has testamentary intent
Factors to determine T’s Capacity
T must be at least 18 and of sound mind; meets mental capacity if she knows:
* Nature and extent of her property
* Persons who are the the natural objects of T’s bounty
* Disposition she is trying to make, and
* testamentary plan
Signature Rules
- Signed by T in the joint presence of two W’s
- UPC: T may acknowledge his signature to Ws; Ws need not to be present at the same time
Test for measuing “in Presence of” on will signature
- Line of sight (traditional) test: T&W see (or have opp to see) each other sign the will
- Conscious presence (modern) test: T&W must be aware through ANY sense that each is signing the will
Interested Witness Doctrine
CL: an interested W is not competent as a W; the will is invalid unless there are at least two disinterested Ws
Purge Theory: a gift to W is denied to the extent of the amount in excess of W’s intestate rights
UPC: interested W doctrine is abolished
Proving Testamentary Intent
- T must execute a will with present testamentary intent, must understand tht he is executing a will, and intend that it have testamentary effect
- T must generally know and approve of the will’s contents, but need not understand all provisions
Compliance with statutory reqt’s:
CL and UPC
CL: strict compliance
UPC: substantial compliance if there is clear & convincing evidence of T’s intent
Holographic Wills
Some states vs. Other (UPC)
some states: entire will must be in T’s handwriting
other/UPC: only the material provisions must be in T’s handwriting
Must be signed by T, no W req’d, date (in some statees), handwritten changes after will completed are effective
“self-proved” will
a will acknowledged by T and affirmed by Ws before a court official
Effect: removes need for testimony of the attesting Ws at the formal probate proceeding
Noncupative (Oral) Wills
UPC vs Others
UPC: not permitted
Others: permitted, but valid for disposition of limited personal property made in contemplation of immediate death.
How are codicils executed and what is their effect?
Changes or additions to a will
Execution: the same formalities as for a will must be observed
Effect republishes will as of the date of codicil; may validate an invalid will
Revocation of codicil revives prior will
How is a will revoked?
- Subsequent instrument (oral revocation insufficient) can be express or implied; if inconsistency the later doc controls and revokes prior inconsistenceis
- Destruction w/ intent to revoke; rebuttable presumption of destruction when a will known to exist can’t be found (duplicate original will overcome)
- Operation of law: divorce (UPC states revoke will provisions for former spouse unless contrary to T’s intent)
- Cancellation of words: can decrease, but not increase, a gift
Republishing a prior will
CL automatic revival of original will upon revocation of sub will (rare)
UPC look for T’s intent (1)whether 2nd will is revoked by act or by a later will; and (2) if 2nd will is revoked by act, whether first will was wholly or partially revoked by 2nd will
Dependent Reletive Revocation (DRR)
T’s revocation of will is disregarded if it was based on mistake of law or fact and would not have been done but for that mistake.
Order in which gifts are abated it they can’t be fulfilled
First to last as follows:
* intestate property
* residuary bequests
* general bequests
* specific bequests
Demonstrative gifts are treated as a specific bequest unless it can’t be - then general (property to come from a particular source)
