Formal Creation

Question 1

What types of wills are acceptable

Answer 1

Probate code of every state contains the Wills Act, which lists the rules for making a valid will

Three types of wills are acceptable (depending on the state)
A) Formally executed will (requirements of the Wills Act are met)
B) Holographic will
C) Notarized will (don’t use this one in practice)

Question 2

What is a formally attested will?

Answer 2

a) To have a valid attested will, the will must be in writing, signed, and witnessed
b) UPC 2-502 Strict Compliance for attested wills
i. Attested wills means the will was formally drafted by an attorney

Question 3

What are the formalities for a formally attested will?

Answer 3

1. writing
2. signature & subscription
3. attestation of witnesses

Question 4

What counts as a writing?

Answer 4

(a) A will need not be on paper – all that is required is a reasonably permanent record of the markings that make up a will
(b) Videos – will not satisfy the requirements for a will, but can be used for testamentary capacity; will not work as a will substitute

Question 5

What counts as a signature?

Answer 5

(1) The testator’s signature
(2) Testator’s full name at the end of the document (a mark, cross, abbreviation, or nickname will be sufficient)
a. A mark but be notarized
(3) Authorizing someone else to sign:
a. Testator can authorize someone else to sign on behind of testator, so long as the testator is in the same room as the authorized person when the will is signed

Question 6

What is the order of the signing?

Answer 6

(1) Generally, the testator must sign the will before the witnesses
(2) If they all sign as a single (or continuous) transaction, order doesn’t matter

Question 7

What is a subscription?

Answer 7

(1) Subscription = requirement that the testator sign at the end of the will
(2) If something is added to will, the will would be admitted to probated but the line added after subscription would be ineffective

Question 8

What is attestation?

Answer 8

(a) Witnesses (requirements vary per state, most require 2, strictest: 3 witnesses)
(b) Some states require that the witnesses are disinterested
(1) Disinterested witnesses = the witnesses and/or spouse cannot benefit in any way based on the will

Question 9

Where do witnesses have to be when signing the will?

Answer 9

They have to have presence

Question 10

What constitutes as presence?

Answer 10

1. line of sight

2. conscious presence

Question 11

What is “line of sight”?

Answer 11

(always choose this one)

a. Under this test, the testator doesn’t have to actually see the witnesses sign but must be able to see them if the testator were to look
b. Line of sight = able to see the person in the act of signing

Question 12

What is “conscious presence”?

Answer 12

a. Under this test, witness is in the presence of the testator if the testator, through sight, hearing, or general consciousness of events, comprehends that the witness is in the act of signing
i. Mental comprehension
b. Example - UPC 2-502(a) – for a signature by another at the testator’s direction, UPC requires conscious presence

Question 13

What are disinterested witnesses?

Answer 13

RULE – the witnesses must be disinterested witnesses, meaning they are not named beneficiaries in the will

Question 14

Who constitute an interested witness?

Answer 14

(a) Anyone mentioned in the will (and/or spouse)

(b) In many states, a spouse that is named in the will

Question 15

What is the problem with having an interested witness?

Answer 15

(Common law = the will was voided in its entirety, unless there were enough disinterested witness

Question 16

How to resolve the problem of an interested witness?

Answer 16

Purging statutes – they save the validity of the will

There are 2 type purging statutes

Question 17

What are the types of purging statutes?

Answer 17

2 type purging statutes

a. Removes the gift from the witness, in order to allow him to quality as a witness
b. The interested witness will be purged of his gift, but only to the extent that it’s greater than his intestate share

Question 18

Where does the gift purged go?

Answer 18

The amounts that are purged fall into the residuary estate and go to whoever is the residuary

Question 19

What does the UPC say about interested witnesses?

Answer 19

Doesn’t care about disinterested witnesses, so long as he is:

i. 18 years old or older, and
ii. Competent

Question 20

What is a self-proving affidavit?

Answer 20

All wills should contain a self-proving affidavit

(a) Is signed by witnesses, to attest that they saw the testator sign the will and they themselves signed, indicated that all the formalities have been followed

Question 21

What standards are followed for wills?

Answer 21

1. strict compliance
2. substantial compliance
3. harmless error

Question 22

What is strict compliance?

Answer 22

Under traditional law, in order for a will to be admitted to probate, it must be in strict compliance with the formal requirements of the Wills Act

ii. Requirements. The will must be:
(a) In writing,
(b) Signed by the testator,
(c) Attested to by at least two witnesses

Question 23

Why do courts require strict compliance?

Answer 23

(a) Eliminates will contest

b) Protects the testator (the attorney wants testator to be aware of the solemn ritual

Question 24

What is substantial compliance?

Answer 24

Forgive non-material defects in the execution of a will

(a) ASK – whether the manner in which an instrument was executed satisfied the purpose of the Wills Act
(b) This doctrine does not apply if there are not witnesses when the will is signed

Question 25

What is harmless error?

Answer 25

Forgive non-material defects in the execution of a will.

the statutory version of substantial compliance.
followed by 10 states

Question 26

What is the standard for harmless error?

Answer 26

(1) The proponent must prove by clear and convincing evidence that the decedent intended the document to serve as his will**
a. Clear and convincing evidence almost always means to get the lawyer to say what happened regarding the will

Question 27

How do you safeguard a will?

Answer 27

i. Make copies
ii. Have the witnesses and testator use blue ink to determine which is the original will
iii. Some firms DO NOT retain the original – because that would solicit extra business
(a) BUT if the client wants attorney to keep the will, then attorney must have a form ready for the client to sign that the client required the attorney keep the will to prove that it was solicited

Question 28

Is there relief for strict compliance?

Answer 28

Ad hoc relief; will is signed by the wrong spouse

i. RULE – a will is not valid if it purports to be the will of one person but is signed by the his or her spouse