Testate Succession - Feb. 9 - Mar. 13 Flashcards
What is formal execution of a will? (Q)
Formal execution of a will is the procedure by which a testator’s intention to dispose of the testator’s property complies with applicable law. A will must be properly executed to have any dispositive effect.
What is an attested will?
An attested will is a will that is:
in writing,
signed by the testator or in the testator’s name by an individual in the testator’s conscious presence and at the testator’s direction, and
witnessed by the statutorily required number of people (usually two, sometimes three) who sign the will within a reasonable time after witnessing the signature on behalf of the testator or witnessing the testator’s acknowledgment of the signature as his own.
In many states, a will is invalid if it fails the requirements of an attested will.
For a will to be valid, must the testator sign it? (Q)
Yes. For a will to be valid, the testator must sign it. In every state, the rule in almost every case is that a will the testator has not signed is invalid.
What does it mean for a testator to sign a will? (Q)
For a testator to sign a will means that the testator writes her name, places a mark, or uses a title or epithet by which the testator is known (e.g., “Mom” or “Dad”), with the intent to adopt the will as her own. The ideal signature consists of the testator’s full, freestanding name at the end of the document.
May an attested will be valid, even if the witnesses do not observe the testator signing the will? (Q)
Yes. An attested will may be valid, even if the witnesses do not observe the testator signing the will. If the witnesses do not observe the testator signing the will, though, then the testator must acknowledge the signature as his own in front of the witnesses. This presupposes that the testator has already signed the will at that time.
In the case of an attested will, must the testator ordinarily sign the will before the witnesses sign it? (Q)
Yes. In the case of an attested will, the testator must ordinarily sign the will before the witnesses sign it. However, the order of signing does not matter if the testator and the witnesses sign the will as part of one continuous or single transaction. If the testator’s name appears above the witnesses’ names on the will, this raises an inference that the testator signed the will first.
Do some jurisdictions require that the testator’s signature appear at the end of the will? (Q)
Yes. Some jurisdictions require that the testator’s signature appear at the end of the will. These jurisdictions will infer that anything appearing after the signature was added after the testator signed the will. Thus, anything appearing after the signature will not be treated as part of the will, unless (1) the harmless-error doctrine applies, and (2) it is shown by clear and convincing evidence that these provisions were meant to be part of the will.
Must the testator necessarily sign a will herself? (Q)
No. The testator need not sign a will herself. Someone else may sign the will on the testator’s behalf. The person must sign the will (1) at the testator’s direction and (2) in the testator’s presence. The prevailing view is that the presence requirement is satisfied if the person signs the will in the testator’s conscious presence, whether or not the signature takes place within the testator’s line of sight. Other jurisdictions, though, require the signature to take place within the testator’s line of sight. That is, unless the testator is blind, the signature must take place in a location that the testator could see, or within the testator’s field of vision.
In most jurisdictions, must the witnesses sign an attested will in the testator’s presence? (Q)
Yes. In most jurisdictions, the witnesses must sign an attested will in the testator’s presence. Many jurisdictions also require the witnesses to sign in each other’s presence, as determined by either the conscious-presence or the line-of-sight test. However, under the UPC, the witnesses need not sign the will in the testator’s or each other’s presence, provided they sign the will within a reasonable time after witnessing the testator’s signature or acknowledgement.
In the context of an attested will, what is a publication requirement? (Q)
In the context of an attested will, a publication requirement is a rule that sometime during the will’s execution, the testator must expressly state to the witnesses that the document they are attesting is his will. Not all states impose a publication requirement, but some do.
What is an attestation clause? (Q)
An attestation clause is a clause appearing at the end of an attested will, stating that the formal requirements for a valid attested will are satisfied. No state requires an attestation clause. However, including one will raise a rebuttable presumption that the formal requirements are met, making the probate process easier.
What is a self-proved will? (Q)
A self-proved will is a will that, true to its name, affords prima facie proof of its own validity, eliminating the need for witnesses to testify to validity in a probate proceeding. The general process to create a self-proved will is as follows:
the testator signs or acknowledges the will before the witnesses;
the witnesses sign an attestation clause; and
the testator and the witnesses sign a separate, sworn affidavit (called a self-proving affidavit) before a notary public or other official authorized to administer oaths, attesting that the testamentary formalities are satisfied.
The affidavit is typically attached to the will.
In general, what requirement must a person satisfy to witness an attested will? (Q)
In general, a person must be competent to witness an attested will. This means that the person must be able to observe, recall, and communicate the pertinent facts surrounding the will’s execution. Unless a statute provides otherwise, a minor may be a witness if she meets the competence requirement. In most states, conviction of a crime will not necessarily disqualify a witness. Mental deficiency or severe intoxication, though, may render a person incompetent.
What is a noncupative will? (Q)
A noncupative will is an oral will. In general, a valid will must be in writing. However, some states will recognize an oral will in certain circumstances. Some states allow oral wills if the testator is a soldier in active military service or a sailor or mariner at sea. Also, some states allow oral wills if:
the testator suffers an illness so severe that the testator has had no reasonable chance to make a written will,
the testator is dying and knows it,
the testator orally expresses intent to make an oral will,
two competent witnesses hear the testator make the required oral declarations and later attest to that fact in writing, and
the testator dies.
Generally, the oral will may dispose of property up to a certain dollar value, and the terms of the oral will must generally be written down within a certain time after the testator’s oral declarations.
In the context of wills, what is the harmless-error rule? (Q)
The harmless-error rule is the doctrine that a will may be valid even though the formalities of execution were not strictly observed, if the will proponent shows by clear and convincing evidence that the decedent intended to adopt the document as his will. The rule applies not only to defects in executing a will but also defects in revoking a will or reviving a revoked will. The lack of a writing can never be excused under the harmless-error rule. The lack of a signature is almost inexcusable under the harmless-error rule, as the signature is generally seen as the decisive act by which the testator adopts the document as his will. Generally, the easiest defects to excuse are defects in attestation, as these are least likely to call into doubt whether the testator intended for the document to be his will.
Have all states adopted the harmless-error rule? (Q)
No. Not all states have adopted the harmless-error rule. In those states that have not adopted the rule, a will is invalid absent strict compliance with testamentary formalities.
Which state’s law generally governs intestate succession of real property? (Q)
Generally, the law of the state where the real property is located governs intestate succession of real property. That state typically has the strongest interest in deciding matters concerning real property located within its borders.
Which state’s law generally governs intestate succession to personal property? (Q)
Generally, the law of the state where the decedent was domiciled at death governs intestate succession to personal property—that is, all types of property except real property. That state typically has the strongest interest in these matters.
Which state’s law generally governs the interpretation and validity of a will, to the extent the will disposes of personal property? (Q)
To the extent a will disposes of personal property, the law of the state where the decedent was domiciled at death generally governs the will’s interpretation and validity. In practical effect, this state’s law governs the will’s validity and interpretation for all purposes except the disposition of real property.
Which state’s law generally governs the validity and construction of a will, to the extent it disposes of real property? (Q)
To the extent a will disposes of real property, the law of the state where the property is located will generally govern the will’s validity and effect. That state generally has the strongest interest in adjudicating matters relating to property within its borders.
Which state’s law generally governs the testator’s testamentary or mental capacity to make a will? (Q)
Generally, the law of the state where the testator was domiciled at death governs the testator’s mental capacity to make a will. However, to the extent the will disposes of real property, the law of the state where the property is situated generally governs capacity.
Which state’s law generally governs a beneficiary’s capacity to take under a will? (Q)
Generally, the law of the state where the beneficiary is domiciled governs a beneficiary’s capacity to take under a will. However, some courts hold that the law of the state where the decedent was domiciled at death governs capacity to take under a will. To the extent a will disposes of real property, the jurisdictions generally agree that the law of the place where the property is located governs capacity to take under a will. Finally, whether a beneficiary has attained the age of majority is generally governed by the law of the testator’s domicile at death.
Which jurisdiction’s law generally governs revocation of a will? (Q)
Generally, the law of the jurisdiction where the decedent was domiciled at death governs revocation of a will. However, to the extent the will disposes of real property, the law of the jurisdiction where the real property is located governs revocation of a will.
If a will makes a class gift, which jurisdiction’s law generally governs membership in the class? (Q)
Generally, if a will makes a class gift, the law of the jurisdiction where the decedent was domiciled at death governs membership in the class. Some jurisdictions hold that this rule applies to gifts of both real and personal property. However, if a will makes a class gift of real property, some courts hold that the law of the place where the property is located governs membership in the class.
If a will expressly designates which jurisdiction’s law is to govern the will’s interpretation, will courts generally respect the designation? (Q)
Yes. If a will expressly designates which jurisdiction’s law is to govern its interpretation, courts will generally respect the designation. Put differently, choice-of-law clauses in wills are generally valid and enforceable.
If a decedent with contacts and property in multiple states executes a will disposing of personal property, which state’s law traditionally governs validation of the will and disposition of the personal property? (Q)
If a decedent executes a will disposing of personal property, the law of the decedent’s domicile at death traditionally governs both validation of the will and disposition of the personal property. However, to the extent the will disposes of real property, the law of the state where the real property is located will govern.
If a decedent with contacts and property in multiple states executes a will disposing of real property, which state’s or states’ laws traditionally govern validation of the will and disposition of the real property? (Q)
If a decedent executes a will disposing of real property, the law of the state where the real property is located traditionally governs the validity of the will for purposes of distributing the real property, as well as disposition of the real property. The law of the state of the decedent’s domicile governs the will’s validity for all other purposes.
A decedent died in a car accident while on vacation in State A. At the time of the decedent’s death, she was domiciled in State B, where she moved for retirement and rented an apartment. The decedent continued to own a former home in State C, which she used as a summer home for many years until her death.
Which state’s or states’ law govern the validity of the decedent’s will? (Q)
The laws of State B and State C will govern. The validity of a will disposing of real property is governed by the law of the state where the real property is located but only for purposes of distributing the real property. The validity of a will disposing of personal property is governed by the law of the state where the decedent was domiciled at death.
Here, State C is the location of the decedent’s real property. Thus, State C’s law will govern the validity of the decedent’s will for purposes of distributing the decedent’s summer home. As the decedent was domiciled in State B at death, State B’s law governs for purposes of distributing the decedent’s personal property. State A’s law does not apply at all, as State A is neither the decedent’s domicile nor the location of the decedent’s real property. Consequently, the decedent’s will must be validated under the laws of State B and State C.
Under traditional, majority doctrine, a will is generally valid everywhere if it is valid under which jurisdiction’s law? (Q)
Under traditional, majority doctrine, a will is generally valid everywhere if it is valid under the law of the jurisdiction where the decedent was domiciled at death. Conversely, a will is generally invalid everywhere if it is invalid under that jurisdiction’s law.
However, to the extent the will purports to dispose of real property not located in that state, the state where the property is located must independently determine whether the will is valid under its own law. If the will is not valid under that jurisdiction’s law, the real property will pass by intestacy—even if the will is valid under the law of the place where the decedent was domiciled at death. Conversely, if the will is valid in the jurisdiction where the real property is located, then the property will pass under the will, even if the will is invalid in the place of the decedent’s domicile at death.
Under the UPC, if a will is executed in compliance with the formal requirements of the testator’s domicile at the time of execution, could the will execution nevertheless be invalid if the testator’s domicile differs at death? (Q)
No. If a will is executed according to the formal requirements of the testator’s domicile at execution, the will is valid whether or not the decedent’s domicile differs at death. Under the UPC, it is sufficient that the will execution satisfies the formalities of the testator’s domicile at the time of execution. It is immaterial that the testator’s domicile changes afterward.
Under the UPC, a will is generally valid everywhere if it is valid under which jurisdictions’ law? (Q)
Under the UPC, a will is generally valid everywhere if it is valid under the law, as it existed at the time of execution, of the forum state or the place where:
the will was executed,
the decedent was domiciled at death or execution,
the decedent had a place of abode at death or execution, or
the decedent was a national at death or execution.
The will need not be valid under the law of each of these jurisdictions. It is generally valid everywhere if it is valid under the law of one of these jurisdictions.
A testator domiciled in State A executed a holographic, or handwritten, will in State A, without any witnesses. The testator’s will disposed of all the testator’s property, including both personal property and a parcel of land located in State B. Holographic, unwitnessed wills are valid under State A law but not under State B law.
Could the testator’s will be recognized as valid in State B under the UPC? (Q)
Yes. The will could be recognized as valid in State B. Under the UPC, a will’s execution is valid if it complies with the law of the state where the will was executed or the law of the state where, at either execution or death, the testator was domiciled, had a place of abode, or was a national.
Here, the will was executed in State A, and the testator was domiciled in State A at the time of both execution and death. The law of State A recognizes holographic wills as valid. Thus, although witnesses are required in the forum state (State B), the will’s execution would be deemed valid under the law of State A. Thus, the will could be admitted to probate in State B.
A testator executed an unwitnessed holographic will, which was formally valid in the testator’s state of domicile. The testator also owned real property in a second state that did not recognize unwitnessed wills.
Can the second state refuse to admit the will to ancillary probate under traditional principles? (Q)
Yes. The second state can refuse to admit the will under traditional principles. Under traditional principles, a state may apply its own law to a testamentary disposition of real property in that state. Under the UPC and the law of some states, however, a state must validate a will that complies with the formalities required by the testator’s state of domicile.
Here, the second state does not recognize unwitnessed wills. This means that state can refuse to admit the will to ancillary probate under traditional principles.
