Validity of Wills Flashcards
What are the requirements of a duly executed will?
7-Point Test:
- testator ≥ 18
- signed by testator
- testator’s signature must be “at the end thereof.”
- testator signes will or acknowledges earlier signature in presence of witnesses.
- testator “publishes” the will by communicating to witnesses that they are witnessing a will
- two witnesses sign (NY doesn’t make them sign in each others’ presence) after or contemporaneous to testator.
- Execution ceremony is complete in 30 days (clock starts when first witness signs).
18+ year old testator signs the will at the end thereof, and two witnesses sign knowing they’re signing a will and attesting to testator’s prior or contemporaneous signature, and the witnesses sign within 30 days of each other.
If the testator has the witnesses sign and then a few days later, signs the will himself - is it duly executed (assuming all other elements are met)?
No! Testator must sign either before or contemporaneous to both witnesses.
What is a codicil?
A later amendment or supplement to a will - must be executed with all the same formalities.
What effect do words that come after a testators signature have?
No effect - testator must sign “at the end thereof” and anything below the signature will not be included in the will. But - it won’t necessarily invalidate what’s above the signature.
If the testator signs close to the top, such that enforcing only what’s above the signature would defeat testator’s intent - the whole will is invalid.
When can a third party guide testator’s hand while he signs?
When testator intends to sign - maybe he has a physical disability, or is illiterate.
Marking an X is sufficient if intended to be a signature.
If testator has already signed his will, not in the presence of the witnesses, how can due execution be met?
Testator has to acknowledge his signature in the witness’s presence.
Can a will be valid if one of the witnesses predeceases the testator?
Yes - due execution is not affected by later events.
Who has the burden of proving due execution?
The will proponent (offering the will to probate).
How can the proponent prove due execution when 1 witness is unavailable to testify?
The testimony of 1 witness will suffice if the other is unavailable.
How can the proponent prove due execution when both witnesses are unavailable?
the will must prove the signatures of both the testator and at least one of the witnesses.
What is an attestation clause?
This appears between the testator’s and witnesses’ signature lines. It recites all the elements of due execution.
What probative value does an attestation clause have?
It is prima facie evidence of the facts presented (due execution facts) - but it is not a substitute for live testimony. It is corroborative.
What result if a witness has a bad memory or is hostile?
The attestation clause can be used to rebut the witness’s bad evidence, and the judge can weigh it in deciding whether to probate the will.
What is a self-proving affidavit?
Attached to the back of a will - it is a mechanism the legislature has created to recognize that most wills won’t be contested.
It is a SWORN statement by the witnesses (before an attorney) that recites all the due execution requirements.
It is a substitute for live testimony because it is sworn testimony.
When must a self-proving affidavit be signed?
Can be signed at the time the will was executed or any time thereafter.
