Valid Execution of Wills

Question 1

What is the maker of a will called?

Answer 1

the testator

Question 2

To be valid, a will must comply with the law of the state where:

Answer 2

• where the testator created the will OR

- where the testator was domiciled at death

Question 3

What are the requirements of a valid will?

Answer 3

• signing
• testamentary intent
• testamentary age and mental capacity
• attestation

Question 4

What satisfies the signing requirement?

Answer 4

In front of two witnesses, the testator must: (a) sign the will, (b) direct another person to sign for him, or (c) acknowledge a previously made signature. Any mark with intent to adopt the document constitutes a signature.

Question 5

What is testamentary intent?

Answer 5

Intent to make a will

Question 6

How old does a person have to be to create a will?

Answer 6

18

Question 7

What mental capacity is required for a testator to make a will?

Answer 7

The testator must:

(1) Understand it is a will and the effect is to distribute property after death
(2) Know the nature and extent of the estate
(3) Understand “the natural objects of his bounty” (who his close relatives are)

Question 8

What is an insane delusion?

Answer 8

An insane delusion is a false belief adhered to against reason that affects the provisions the testator writes into his will.

Question 9

What is the effect of an insane delusion?

Answer 9

The provisions will be invalidated, unless the testator would have devised the property in such a manner without the insane delusion.

Question 10

What evidentiary showing is required for a determination of a testator’s mental incapacity?

Answer 10

There is a presumption of capacity, which can only be overcome by substantial evidence of incapacity. The challenger must demonstrate (1) that a rational person would not have reached the same belief, and (2) the insane delusion caused the testator to change his devises.

Question 11

What does attestation require?

Answer 11

In most states, two competent witnesses must, by signing their own names, attest to (a) seeing the testator sign the will or (b) hearing the testator acknowledge his signature.

Question 12

What is the effect of one or both witnesses having an interest in the will?

Answer 12

In all states, the will is still valid even if there are interested witnesses.

In some states, however, the bequest to the interested witness is void. (Unless there are two other disinterested witnesses.)

Question 13

What is a “nuncupative” will?

Answer 13

an oral will

Question 14

Are nuncupative wills allowed?

Answer 14

Nuncupative wills are generally invalid in most states.

Question 15

What exceptions exists to prohibitions agains nuncupative wills?

Answer 15

• gift causa mortis (on your deathbed and unable to make a writing)
• gift during service in the armed forces
• often limited to personal property under a specified amount

Question 16

What are holographic wills?

Answer 16

• handwritten wills

Question 17

Are holographic wills allowed?

Answer 17

It depends. Many states will allow handwritten wills as long as there is still attestation. Some states ban handwritten wills.

Question 18

What is a conditional will?

Answer 18

A conditional will contains language making it effective upon the happening of a condition. (E.g., “If I die mountain climbing, then my house is devised to my sister Mary.”)

Question 19

How do courts determine whether to enforce a conditional will, after a condition precedent did not occur but the testator has died and never made a new will?

Answer 19

Courts look to the intent of the testator to determine whether the will was intended to be predicated on the specified event occurring or whether the event spawned his desire to finally create a will, making it a final expression of how he would like his estate distributed regardless of the event occurring. Typically the will is enforced unless the language was clear that the condition must occur for the will to be effective.

Question 20

Is a promise to make a future devise in a will enforceable?

Answer 20

A mere promise to make a devise is generally not enforceable, unless there is consideration for the promise and (in most states) a writing. Clear and convincing evidence of the contract is required.

Question 21

What are joint wills and mutual wills?

Answer 21

If two parties agree to will something to each other or to third parties they create a joint will (same document) or mutual wills (different documents).

Question 22

Are joint and mutual wills binding?

Answer 22

Joint and mutual wills are revocable while both parties are living. Once one party dies, the other party is bound by the agreement and cannot revoke the devises.