Formal Requisites and Execution of Wills

Question 1

Define

Will

Answer 1

An instrument that is executed with certain formalities, testamentary in character, revocable during the lifetime of the maker, and operative at the testator’s death.

Compare: a codicil is a supplement to a will that alters, amends, or republishes the will. It must be executed with the same formalities as a will.

Question 2

Requirements for Testamentary Capacity

Answer 2

• Must be at least 14 years old.
• The testator must have knowledge of the contents of the will.
• At the time the will was made, the testator must have sufficient capacity to -
  
  • Understand the nature of the act he was doing;
  • Know the nature and character of his property;
  • Know the objects of his bounty; and
  • Understand the disposition he was making.
• Burden of proving capacity is on the proponent.

Question 3

Define

Testamentary Intent

Answer 3

For a will to be valid, the testator must have the present intent that the particular instrument operate as his will. Testamentary intent is generally established by the document itself.

Question 4

Undue Influence

Answer 4

• To be sufficient to invalidate a will on the grounds of undue influence, the evidence must show:
  
  • the influence destroyed the free will of the testator;
  • but for the undue influence, the testator would not have made the will; and
  • the undue influence was operative at the time the will was executed and published.
• Where a person stands in a confidential relationship with the testator receives a substantial benefit under the will and that person is not a natural object of the testator’s bounty, undue influence is presumed.

Question 5

Misrepresentation & Fraud

Answer 5

To show fraud sufficient to invalidate a will, the contestant must show:

1. Someone knowingly lied to the testator with the intent to deceive;
2. The testator, at the time of execution, was deceived; and
3. As a result, she executed a will which, but for the lie, she would not have made.

Question 6

Mistake

Answer 6

If the testator was mistaken as to the nature of the instrument signed, the instrument is not a valid will.

Question 7

Will Excluding Spouse or Children

Answer 7

A testator may make any disposition of his property not inconsistent with law or policies of Georgia - and thus a testator may bequeath his entire estate to strangers, at the expense of his spouse and children.

Question 8

Latent & Patent Ambiguities

Answer 8

Parol evidence is admissible to explain all ambiguities, either patent or latent.

Question 9

Execution of Wills

Answer 9

All wills must be (1) in writing; (2) signed by the testator (or by another person in his presence at his direction); and (3) attested by two or more competent witnesses.

Question 10

Signature Requirement

Answer 10

Any mark affixed by the testator, with the intent that it operates as the testator’s mark or signature, satisfies the signature requirement.

Question 11

Attestment Requirement

Answer 11

Georgia follows the “Scope of Vision” test -

• The witnesses do not have to attest the will in the presence of each other, but each witness must attest the will in the testator’s presence.
• The witness is in the testator’s presence if he is within his uninterrupted range of vision, but the testator does not actually have to see the witness sign.
• The witnesses must either see the testator sign the instrument, or the testator must acknowledge his signature in the witnesses’ presence.

Question 12

Interested Witnesses

Answer 12

If a subscribing witness is also a legatee or devisee under the instrument, the instrument will still be a valid will, but the witness will forfeit any gift unless there are two other subscribing witnesses who are not beneficiaries under the will.

Question 13

Holographic Wills

Answer 13

Holographic wills are not recognized in Georgia - all wills must be signed and witnesses by two attesting witnesses.