validity of wills Flashcards
requirements for duly executed will
7 POINT TEST (EPTL)
1) Capacity: to have capacity to make a Will, the testator must be 18 years old.
2) Signed by Testator (or by someone at testator’s direction and in her presence).
1) If Proxy Signature: the proxy
(a) must also sign her name AND
(b) cannot be counted as one of two necessary witnesses*** AND
(c) shall affix her address—BUT, failure to affix will not invalidate will
3) Testator Signature Must: “be signed at the end thereof”—otherwise, words after signature ignored
(a) EXCEPT: entire will invalid if what came after signature so important or material that ignoring it and enforcing the rest would defeat testator’s intention.
4) Testator Must Either (1) Sign Will or (2) Acknowledge Earlier Signature in Presence of Each Witness (unlike most states, NY allows for acknowledgement–does NOT require that witnesses sign in each other’s presence or in testator’s presence) (any mark intended as signature is ok)
5) Testator Will Publication: testator must declare document to be their last will and testament; must communicate to the witnesses that they are witnessing a Will (not some other legal document)
6) At Least Two Attesting Witnesses, and
1) Witnesses do not need to sign in each other’s presence.
2) Witnesses do not need to sign in the testator’s presence
BUT NOTE: Contemporaneous Transaction (KEY!): attesting witnesses must attest to testator’s signature when testator signed will or acknowledged signature
1) If testator acknowledged earlier signature (if signature showing, or point to it is sufficient)
2) If testator forgot to sign when witness signed, and added signature in witnesses’ presence later → DENY PROBATE.
7) Execution Ceremony Complete Within 30 days of First Witness Signing: doesn’t start when testator signs; T can sign, then acknowledge.
i) Codicil: a later amendment or supplement to a Will; must be executed with same seven formalities.
1) Execution Date = Codicil Date
summary of due execution
T is 18; signs; at end thereof; signs or acknowledges in presence of each witness; publication; 2 attesting witnesses; ceremony completed within 30 days
burden of proof for due execution-generally
will proponent (person offering for probate (executor)) has burden to prove duly executed.
1) If one witness is not available to testify → testimony of one witness suffices
(a) Example: one witness is dead, absent from state, incompetent, can’t be found with due diligence.
2) If no witness are available to testify → proponent must prove two signatures—of testator and one witness.
3) If will is not self-proved (see below) → both attesting witnesses must testify as to facts necessary to show due execution**. If one witness is forgetful, still ok if attestation clause or enough evidence
Note: attestation clause and affidavit are not legally required in any state, but almost malpractice to not get self-proving affidavit
Note: lay witness may testify as to actions and statements of testator within her observations, but may not express opinion on soundness of mind
burden of proof for due execution-attestation clause
Appears below testator’s signature and above witnesses’ signatures, recites all elements of due execution, and constitutes prima facie evidence of the facts presented, BUT it is NOT a substitute for live testimony → merely corroborative of witnesses’ testimony → proponent must still call the witnesses to testify or prove signatures.
1) Effect of Attestation Clauses:
(a) Witness with Bad Memory—“probate of will does not turn on memory of attesting witnesses”
(b) Hostile Witness—can be used to rebut a hostile witness.
2) Language: “On the above date, 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.”
3) Note: NY Courts try to make Wills work, do not want intestacy.
self-proving affidavit
Witnesses sign sworn affidavit in presence of attorney that recites all statements they would make if called to testify in court—that seven point test fulfilled—substitutes for live testimony.
1) Substitute for Live Testimony: Unlike attestation clause (which is merely corroborative of witnesses’ testimony – you still have to call witnesses to testify, or else prove their signature), self-proving affidavit is legal record of witnesses and serves same function as interrogatory or deposition (sworn testimony).
2) Procedure:
(a) Affidavit can be signed at any time after Will executed, but usually at same time.
(b) Will admissible to probate on strength of affidavit UNLESS an interested party objects → formal rules apply → call two attesting witnesses to testify.
(i) Interested Party: A distributee who is adversely affected by admission of Will to probate, heir or legatee under earlier will.
interested witness statute
a) That a will beneficiary is also attesting witness never affects will validity, but the bequest is void, UNLESS
1) Supernumerary Rule: There were three witnesses and the other two were disinterested—so the signature of third-witness (witness-beneficiary) is not needed to admit Will to probate. OR
2) Interested Witness Would Be Intestate Distributee if Testator Died Without Will—witness-would-be-intestate beneficiary takes the lesser of:
(a) the bequest under the Will; or
(b) his intestate share.
Purpose of statute: to avoid fraud
3) Friends: do not witness wills, because you don’t have an intestate share to fall back on so you will lose bequest BUT will will still be valid.
b) Compensation as Executor: does NOT trigger interested witness rule; thus, executor can be witness.
NOTE: if a will provision falls into intestacy because there is no residuary clause, it is still considered a will for purposes of this statute (lower ct decision).
foreign wills act
a) Rule: A will admissible to probate in New York if validly executed under—END
1) E: Law of state where it was Executed, regardless of testator’s domicile at that time, OR
2) N: New York Law (7 point Test); OR
3) D: Law of state where testator domiciled, either when Will executed OR at testator’s death.
b) These rules go only to question of whether will admissible to probate in NY. Once admitted, NY law governs construction and application of provisions
holographic and nuncupative wills
a) General Rule: Both holographic and nuncupative wills invalid in NY (but recognized in about 30 states)
1) Holographic Will: a handwritten will entirely in testator’s handwriting, signed, but not witnessed
2) Nuncupative Will: an oral will
SO both are VOID unless meet one of exceptions:
b) EXCEPTIONS: valid if:
1) Armed Services During Declared or Undeclared War—expires one year after discharge
2) Mariners At Sea—expires after 3 years
3) If Later Witnessed (and meets other 7 pts)
4) Application of Foreign Wills Act—if holographic will executed in state that recognizes them, ok in NY even though not validly executed in NY
lawyer malpractice ***
a) General Rule: lawyer’s duty to create valid will only runs to client (privity of contract).
b) Negligent Estate Planning: estate can sue if it costs the estate money (e.g., bad tax consequence)
c) Intended Beneficiaries Screwed: no privity of contract
