Requirements of a will! Flashcards
Name the 7 points of the will test
1) Must be 18.
2) Signed by testator or someone at testators direction and in presence. If proxy, must also sign and say address.
3) Testator’s signature at end of document.
4) Testator must sign will or acknowledge earlier signature in presence of witness.
5) Publish will, communicate with witnesses that they are witnessing a will by declaring document to be their last will and testament.
6) Two attesting as witness. NY doesn’t require that witnesses sign in each other’s presence OR in testator’s presence.
7) Execution ceremony completed in 30 days which runs when first witness signs.
What is a codicil?
A later amendment or supplement to the rules.
Are words after signatures given affect?
No, entire will is invalid if matter following signature is so material that giving effect to that above signature and not that below would defeat testator intentions.
Can a witness sign before a testator?
Yes.
Can a witness guide a testator’s hand?
Yes.
What if the signature is barely legible?
Even an X is sufficient if it represents that testator.
Didn’t sign will in second witnesses presence?
That’s OK.
Two witnesses did not sign in each other’s presence?
That’s OK.
What if the witness predeceases testator?
That’s OK, as long as you meet the 7 point test.
Who has the burden of proving due execution?
The executor
What if one witness is not available to testify?
Testimony of one suffices if the other is dead, absent from state, incompetent or cannot with due diligence be found.
What if no witnesses are able to testify?
The will proponent or executor must prove the signature of both testator and one witness.
What if the will is not self proved?
The attesting witnesses must testify as to the facts to show due execution.
What is the attestation clause?
It appears below the testator’s signature line and above the witnesses signature line and recites elements of due execution.
What does the attestation clause say?
‘On the above date, the testator declared to us that the foregoing instrument was her will and she asked us to serve as witnesses thereto. She then signed the will in our presence, we being present at the same time. We then signed the will as attesting witnesses’
