Validity of Wills Flashcards
What are the requirements of a duly executed will?
7 Point test.
- Be 18 years old.
- Signed by the testator [or proxy, but proxy cannot be a witness, must sign name)
- Testator’s signature must be at the end
- T must sign the will or acknowledge his signature in the presence of each witness [T cannot sign after witnseses if he forgot to, although can be contemporaneous meeting]
- T must publish the will (must tell the witnesses that this is her “last will and testament”)
- Must be at least 2 attesting witnesses, AND
- This execution ceremony must be completed within 30 days from when the first witness signs.
What is the time limit for the will execution ceremony?
30 days from when the first witness signs
What are the formal requirements to execute a codicil?
Same as to execute a will (seven point test)
What happens when a will is not signed at the end, but instead somewhere else?
The words following the signature are not given full effect.
Exception: The entire will is declared invalid if the matter following the signature is so material that not giving effect to it would defeat the testator’s intention.
Who has the burden of proving a will was duly executed?
If the will is not self -proven (self-proving affadavit), what happens?
Role of attestation clause?
The will proponent. Formal rules require that this is proved [witnesses, or better a
If the will is not proven with a self-proving affadavit, the witnesses must testify to prove their signatures.
An attestation clause is prima facie evidence of the facts presented in it [will state the elements of execution], but it is NOT a substitute for live testimony.
Why have an attestation clause then? If witness has a bad memory or is hostile.
Why have an attestation clause?
It is only prima facie evidence of what it states [the presence of the elements of due execution of a will]. It is not a substitute for live testimony, but will be helpful if the witness has a bad memory or the witness is hostile.
Best is a self-proving affadavit.
What is a self-proving affadavit?
When is it made?
Witnesses sign a sworn statement, in the presence of an attorney, that recites all the statements they would make if they were called to testify in court.
It IS a substitute for live testimony, unlike an attestation clause. But if an interested party objects, the formal rules of proof of due execution apply. **
It’s best be signed right at the time of execution, but can be signed at any point.
How does the interested witness statute work?
Rule: The validity of a will itself is not affected if a will beneficiary is also an attesting witness, but the bequest to the witness is void UNLESS:
1) Supernumerary: There were at least 3 witnesses and 2 were disinterested. (not a beneficiary)
2) The interested witness would be an intestate distributee if the testator had died without a will. If so, TAKE WHICHEVER IS LEAST:
- The bequest under the will
- His intestate share
Note: If the interested witness would not get anything under intestacy, he just won’t get anything at all unless prong 1 is satisfied.
Having a witness simply be an executor does not trigger the interested witness statute.
Foreign Wills Act
What wills are valid in NY?
END
A will is admissible in NY if it was validly executed under:
- The law of the state where the will was executed, OR
- New York law, OR
- The law of the state where the testator was domiciled, either when the will was executed or at death
If the will is admissible, then New York Law applies regarding construction and its provisions.
What is a holographic will?
Valid in NY?
Holographic will is entirely in testator’s handwriting, and is signed, but not witnessed.
Void in NY, unless a member of armed forced during declared or undeclared war (but void one year after discharge), and mariners at sea (but void 3 years after discharge).
Note on Foreign Wills Act: Can be admitted to probate under foreign wills act if this type of will was allowed in other state.
What is a nuncupative will?
A nuncupative will is an oral will.
Void in NY, unless a member of armed forced during declared or undeclared war (but void one year after discharge), and mariners at sea (but void 3 years after discharge).
Note on Foreign Wills Act: Can be admitted to probate under foreign wills act if this type of will was allowed in other state.
A client intends to name certain beneficiaries in her will. Due to lawyer malpractice, the will is not duly executed. Do the beneficiaries have a COA against the lawyer for malpractice?
No.
There is no privity between will beneficiaries and the lawyer preparing the will.
What is the recent NY Court of Appeals ruling regarding lawyer malpractice for wills?
Rule: Although there is no privity between a lawyer and third party beneficiaries of a will, there IS privity between the personal representative of the estate and the estate planning lawyer.
[Lawyer erroneously advised to direct life insurance in such a way as to vastly increase estate tax, hurt the other beneficiaries].
