Requirements for Valid WIll

Question 1

Requirements for testamentary capacity

Answer 1

Age requirement:

1. 18 years or older

Sound mind:

1. Testator must understand the nature, condition, and extent of his property
2. Understand the disposition he’s making
3. Understand who would be the natural beneficiaries or objects of his bounty

Question 2

Presumption of capacity

Answer 2

• Under PA law, capacity is presumed and therefore it is up to the challenger of the will to prove otherwise.
• If challenger can show just cause, then burden shifts to will proponent to rebut the presumption.

Question 3

Intent

Answer 3

• At the time of the execution,
• a testator must intend that this particular document be his or her will.
• Language needs to clearly express testamentary intent.
  
  • Precatory language (expressing wishes or desires) can cause problems for whether or not there is requisite testamentary intent at time of execution.

Question 4

Three concepts that prevent testamentary intent

Answer 4

1. Undue influence
2. Fraud
3. Mistake

Question 5

Undue Influence

Answer 5

• Mental or physical coercion used to control testator’s disposition

Who has the burden of proof?

• burden is on the person who is attacking the will to show existence of undue influence.

Burden of proof:

• There must be clear and convincing evidence of this undue influence

Question 6

When does presumption of undue influence arise?

Answer 6

Presumption of undue influence arises, and the burden of demonstrating testamentary intent shifts to the will’s proponent, where the contestant has established by clear and convincing evidence:

1. Preponent of the will was in a confidential relationship with testator;
2. at or around execution of the will, testator was of weakend intellect; AND
3. Proponent received substantial benefit under the will

Question 7

Result if undue influence is found

Answer 7

The provision that was a result of the undue influence will be invalidated

Question 8

Two types of fraud

Answer 8

1. Fraud in the execution
2. Fraud in the inducement

Question 9

Fraud in the Execution

Answer 9

Fraud as to the nature or contents of the writing itself.

If shown to be fraud in the execution, the will is invalid.

Question 10

Fraud in the Inducement

Answer 10

Intrinsic facts that induce someone to take action that affects the distribution

The test is: Would the testator have made this gift if the testator knew the true facts?

Question 11

Two types of mistake

Answer 11

1. Mistake in the execution
2. Mistake in the inducement

Question 12

Mistake in the Execution

Answer 12

1. Mistake as to the nature of the document
2. Will is invalid

Question 13

Mistake in the Inducement

Answer 13

1. testator executes a will or a clause in the will because the testator is mistaken to the true facts.
2. Does not affect testamentary intent, thus no relief is granted

Question 14

What is a Sham Will?

Answer 14

• A sham will is a will
• made by the testator
• as a sham or joke not intending that it be a valid testamentary instrument

Standard of proof = clear and convincing evidence

Question 15

What formalities are required for a valid will?

Formalities

Answer 15

1. In writing
2. Signed by testator AT THE END of the will
3. Witnesses

Question 16

Oral Will

Answer 16

Is not valid in PA;

Wills must be in writing

Question 17

Witnesses

Answer 17

• Witnesses NOT required for validity
• Interested witnesses are allowed in PA
• If testator signed the will, it is not necessary that the subscribing witnesses see the testator sign, only that testator acknowledge signature to witnesses
• Competent witnesses:
  
  • have the ability to observe the testator affix signature, AND
  • have ability to comprehend the nature of the act

Question 18

Holographic Wills

Answer 18

Requirements for validity:

1. Must be entirely in testator’s own handwriting
2. Signed by testator at the end
3. Requires testamentary intent and capacity

Question 19

Form Wills

Answer 19

Are no good as holographic wills because a holographic will must completely be in testator’s writing

Question 20

Integration

Answer 20

The will comprises any documents or pages actually present at time of execution (created previous to or simultaneously with execution of will) and intended to be part of the will.

Self-proving affidavit:

• executed at the same time as an unsigned will can be integrated, and seen as part of the will itself, in order for the will to comply with the statutory signature requirements

Question 21

Incorporation by Reference

Answer 21

You can incorporate a document from outside the will, if:

1. The outside wriitng musth have been in existence when the will was executed
2. Language of the will must show the intent to incorporate that document
3. The will must describe the document with specificity

Question 22

Separate Writing Disposing of Personal Property

Answer 22

A will may refer to a separate writing that directs the disposition of tangible personal property not otherwise disposed of by the will, in order to provide testators with a more flexible means of bequeathing their personal property

A writing disposing of tangible personal property need not be executed with the same formalities as a will

Requirements:

1. it is in the testator’s handwriting or is signed by the testator;
2. it identifies the items and the legatees with reasonable certainty;
3. it is not inconsistent with the terms of the will; and
4. it is not inconsistent with any other such writing, unless the writing is dated, in which case the writing with the latest date will control.

Question 23

Separate writing may not dispose of?

Answer 23

• money,
• evidences of indebtedness,
• documents of title,
• securities, and
• property used in trade or business

Question 24

Two types of ambiguity

Answer 24

1. Patent ambiguity (on the face of the will)
2. Latent ambiguity
   
   • Extrinsic evidence will have to come in to clear up the ambiguity

Question 25

Conditional Wills

Answer 25

• A will made with a condition precedent
• The will only takes effect upon the occcurrence or nonoccurrence of some condition
• Not favored, but will be recognized

Question 26

Codicil

Answer 26

• A testamentary instrument that adds to OR alters a will
• Must be executed with the same formalities as a will
• Republishes the will so that the codicil and original will are effectively treated as on testamentary document from the date of the execution of the codicil
• If provisions in the codicil differ from the original will, the provisons in the codicil revoke the inconsistent provisions in the will
• A validly executed codicil validates an invalid will, or revives a previously revoked will, if the codicil refers to it with sufficient certainty to identify and incorporate it

Question 27

Contracts to Make Wills

Answer 27

• Will be upheld if:
  
  • Contractual intent
  • Consideration
  • The contract must be established by provisions of the decedent’s will stating material provisions of the contract; an express reference in the decedent’s will to a contract; or a writing signed by the decedent evidencing a contrac