Formalities and Composition Flashcards
proxy signing
signs testators name,
in testators presence,
at testators direction
Attested Will
signed at the end
by testator or proxy
signed by at least 2 competent witnesses
competent witnesses
observe making or acknowledgement of testators signature
must be present at publication - testator declares it is his will
must sign their own name within 30 days of other witness
must sign prior to death of testator
Proxy is not competent
notary not required and does not circumvent 2 witness requirement
Order of Analysis of Statutory elements for an attested will
List
Signature
Witnesses
Publication
Order of Execution
Signature Requirement
liberally interpreted
may be nickname, partial name, initials
valid if testator applied it to will with intent to adopt his document
attestation clause
restates testamentary formalities
prima facie evidence of due execution of the will
not required
substitute for testimony as to due execution of the will
Self-Proving Affidavit
witnesses affirm testators capacity and due execution
signed and notarized
creates rebuttable presumption of due execution
can be used in place of witness testimony even when witnesses are available
Publication
testator makes clear through
words or conduct
document is his will
Order of Execution
particular order required
part of ‘continuing transaction’
order of signatures is not relevant
Effect of text added after testator has affixed signature
no effect regardless of where on the document
no effect given to text below testators signature
Will not duly executed
due execution requirements are strictly enforced
not duly executed - not admitted to probate
estate will pass according to existing valid will or intestacy
Interested witnesses
witness receiving a gift or power under a will
if receiving less under current instrument than prior will,
not an interested witness
Interested witness and validity of will
will is valid
gift to witness is purged
absent 2 additional disinterested witnesses
interested witness takes lesser of what he would have received under the will or intestacy
Noncupative will
oral wills
disallowed in NY
Holographic wills
handwritten and un-witnessed
disallowed in NY except mariners, soldiers during conflict, or civilians serving with military during armed conflict
Non-Attested Wills - list
noncupative
holographic
nuncupative or holographic will is invalid if made by:
exception to the exception
- armed forces member one year after discharge from service
- person serving with AF one year from ceasing service
- mariner at sea, three years after will is made
holographic wills under conflict of laws principles
recognized if executed
by person domiciled in jurisdiction recognizing holographic wills
or executed in a state that allows holographic wills
Foreign Wills
real property is governed by laws of jurisdiction where property is situated
will disposing of personal property is valid in NY if executed
- according to NY law
- according to law where executed
- according to domicile of testator at time of death
once admitted to probate in NY, foreign will is governed by NY law
