MEE Trust & Wills Flashcards
What is required to execute a legally valid will?
(signed writing + intent + capacity + witnessed); a handwritten will can qualify as an attested will if the formalities are met (holographic will)
What does a signed writing require?
Signed with intent by the testator or by someone in his presence and at his discretion; the signature need not be formal so long as the mark is intended as a signature
Signature must be at the end to be valid (some states), or (UPC) can be anywhere on the instrument
What does intent require?
Testator must intend the instrument to function as her will
What is required for the will to be “witnessed”?
The will must be signed in the joint presence of, and attested to by, at least two witnesses; the UPC does not require the witnesses to be present when each other signs, but each must sign within a reasonable time after witnessing testator sign or acknowledge the will.
What kind of “presence” is required of witnesses?
Presence is either “line of sight” or “conscious presence” (majority); UPC applies the “conscious presence” rule only when someone signs on behalf of the testator.
What happens when there is an interested witness?
Effect on Validity - at common law the will was invalid; UPC/majority: the will is valid;
Witness’ Share (analyze the validity of the gift to the witness) -
(i) if there are two other disinterested witnesses or under the UPC, the gift is not affected
(ii) if there are NOT two other disinterested witnesses (in non-UPC states): (a) the gift will stand if the witness is an intestate heir (b) if the witness is NOT an intestate heir, the gift will be “purged” beyond the amount that would be her intestate share (purge theory)
If the will is contested on the grounds of fraud or undue influence, the existence of an interested witness creates what?
If the will is contested on the grounds of fraud or undue influence, the existence of an interested witness creates a rebuttable presumption the testator was subject to undue influence.
Analyze whether the witness would otherwise be entitled to an intestate share to rebut the presumption. While the UPC has abolished the interested witness doctrine, applying the UPC rule should not prevent a discussion of the issue so the grader will know you otherwise understand the rule and concept.
What does a holographic will require?
Holographic Will Requirements - must be entirely in the testator’s handwriting and signed, though some states also require it to be dated; UPC: only “material provisions” must be in handwriting.
Intent - it must be clear the document was intended as testator’s will (e.g., “I bequeath”); UPC: words of intent need not be in the testator’s handwriting and can be shown by extrinsic evidence.
What is a codicil?
A testamentary addition to a will, executed with the same formalities as a will.
What is the effect of a codicil? A holographic codicil?
A valid codicil republishes the will as of the date of the date of the codicil.
- A holographic codicil to an attested will is valid as an attested codicil to a holographic will
What is substantial compliance?
Under minority/UPC’s “harmless error” doctrine, a document that substantially complies with the formality requirements will be recognized as valid, if shown by clear and convincing evidence Testator intended it to serve as his will.
What are substitutes (Nonprobate Transfers)
Rule: An inter vivos transfer of property will avoid probate and is therefore a will substitute.
Types - deed, trust, pour-over trust, insurance policy, payable on death (POD) account, etc.
