Formalities and Composition

Question 0

proxy signing

Answer 0

signs testators name,
in testators presence,
at testators direction

Question 1

Attested Will

Answer 1

signed at the end
by testator or proxy
signed by at least 2 competent witnesses

Question 2

competent witnesses

Answer 2

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

Question 3

Order of Analysis of Statutory elements for an attested will

List

Answer 3

Signature
Witnesses
Publication
Order of Execution

Question 4

Signature Requirement

Answer 4

liberally interpreted
may be nickname, partial name, initials
valid if testator applied it to will with intent to adopt his document

Question 5

attestation clause

Answer 5

restates testamentary formalities
prima facie evidence of due execution of the will
not required
substitute for testimony as to due execution of the will

Question 6

Self-Proving Affidavit

Answer 6

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

Question 7

Publication

Answer 7

testator makes clear through
words or conduct
document is his will

Question 8

Order of Execution

Answer 8

particular order required
part of ‘continuing transaction’

order of signatures is not relevant

Question 9

Effect of text added after testator has affixed signature

Answer 9

no effect regardless of where on the document

no effect given to text below testators signature

Question 10

Will not duly executed

Answer 10

due execution requirements are strictly enforced

not duly executed - not admitted to probate

estate will pass according to existing valid will or intestacy

Question 11

Interested witnesses

Answer 11

witness receiving a gift or power under a will

if receiving less under current instrument than prior will,
not an interested witness

Question 12

Interested witness and validity of will

Answer 12

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

Question 13

Noncupative will

Answer 13

oral wills

disallowed in NY

Question 14

Holographic wills

Answer 14

handwritten and un-witnessed

disallowed in NY 
except
mariners, 
soldiers during conflict, or 
civilians serving with military during armed conflict

Question 15

Non-Attested Wills - list

Answer 15

noncupative

holographic

Question 16

nuncupative or holographic will is invalid if made by:

exception to the exception

Answer 16

1. armed forces member one year after discharge from service
2. person serving with AF one year from ceasing service
3. mariner at sea, three years after will is made

Question 17

holographic wills under conflict of laws principles

Answer 17

recognized if executed
by person domiciled in jurisdiction recognizing holographic wills

or executed in a state that allows holographic wills

Question 18

Foreign Wills

Answer 18

real property is governed by laws of jurisdiction where property is situated

will disposing of personal property is valid in NY if executed

1. according to NY law
2. according to law where executed
3. according to domicile of testator at time of death

once admitted to probate in NY, foreign will is governed by NY law