Validity of Wills Flashcards
Requirements of a Duly Executed Will:
What is the 7 point test?
1- T must be at least 18 years old
2- SIGNED by the testator OR by someone at his direction and in his presence.
[Note: any mark intended as signature is fine, even if an X; if someone else signs for them, they must also sign their name, they cannot be counted as an attesting witness, AND they must affix their address (but failure to include address doesn’t invalidate the will); guiding Ts hand isn’t signing for them if guidance is voluntary]
3- T’s signature must be at the END
4- T must sign the will, or acknowledge his earlier signature, in the PRESENCE of EACH witness
5- T must PUBLISH– requires T to communicate to the witnesses that they are witnessing a will, by declaring the document to be his last will and testament
6- must be at least 2 ATTESTING WITNESSES;
[Note: (i) unlike most states, NY does NOT require the witnesses to sign in each other’s presence OR in the testator’s presence; (ii) testator cannot sign after the witness, unless during a contemporaneous ceremony]
7- Execution ceremony must be COMPLETE IN 30 DAYS which starts to run when the first WITNESS signs.
Codicil
- A later amendment or supplement to a will
- must be executed w/ the same 7 formalities as a will
What happens to words after the signature?
Only the words above the signature go through probate. The words following the signature are not given effect.
EXCEPTION- An entire Will is declared invalid if the matter following the signature is so material that giving effect to that above the signature and not giving effect to that below the signature would defeat the testator’s intention
Who has the burden of proving due execution?
The will proponent (person who offers the will for probate)
Proving Due Execution: What happens if one witness is not available to testify?
The testimony of one witness suffices if the other witness is dead, absent from the state, incompetent or cannot with due diligence by found.
Proving Due Execution: What happens if none of the witnesses are able to testify?
The will proponent must prove the signature of both the testator and ONE witness.
Proving Due Execution: What happens if the will is non self-proved [no self-proving affidavit]?
both attesting witnesses must testify as to the facts necessary to show due execution
Attestation Clause:
- what is it?
- probative value?
- reasons for having?
- It appears below the testator’s signature line and above the witnesses’ signature lines, and recites all the elements of due execution.
- It is prima facie evidence of the facts presented BUT it is not a substitute for testimony (merely corroborative of the testimony)
- Reasons: (i) if a witness has bad memory, the probate of the will will not turn on the memory; (ii) if the witness is hostile the attestation clause can be used to rebut the witness’ evidence
Self-Proving Affidavit:
- what is it?
- probative value?
- It is attached to the back of the will; witnesses sign a sworn statement in the presence of an attorney that recites all the statements that they would make if called to testify to due execution in court
- IS A SUBSTITUTE (unlike attestation clause) for the live testimony of the witnesses; serves the same function as a deposition or an interrogatory (i.e. it is sworn testimony.
Self-Proving Affidavit:
- Procedure?
- affidavit can be signed at ANY TIME after the will is executed, but is USUALLY signed at the same time as the will
- must sign in the presence of an attorney
- will is ADMISSIBLE TO PROBATE on the strength of the sworn recitals in the affidavit UNLESS an interested party objects, in which case the formal rules of proof of due execution apply
NOTE: Interested party = intestate distributee or will beneficiary (current or prior) who is adversely affected by the admission of the will to probate)
Legal requirement of attestation clauses and self-proving affidavits?
NEITHER ARE LEGALLY REQUIRED IN ANY STATE.
Interested Witness Statute
RULE- the validity of the will is not affected if a will beneficiary is also an attesting witness BUT the bequest to the witness is void UNLESS:
1- there were at least 3 witnesses and 2 were disinterested; OR
2- the interested witness/will beneficiary would be an intestate distribute if the decedent died w/o a will, in which case the he takes the LESSER OF (i) the bequest under the will; OR (ii) his intestate share
When are foreign wills admissible to probate in NY?
NY Foreign Wills Act Controls: If it was validly executed under:
1- the law of the state where the will was EXECUTED; or
2- NY LAW; or
3- The law of the state where the testator was DOMICILED either at EXECUTION OR at DEATH
NOTE: These rules apply only to determine whether the will is admissible to probate in NY. Once it is admitted, NY law governs construction and application of its provisions.
Def: Holographic Will
A will written ENTIRELY in testators handwriting that is SIGNED but NOT WITNESSED
Def: Nuncupative Will
An ORAL will
NY Rule Re: Holographic & Nuncupative Wills
ROL- both are VOID in NY
EXCEPTIONS- both are valid for:
1- members of the armed forces DURING declared or undeclared WAR –> void 1 year after discharge; AND
2- Mariners at sea –> void 3 years after discharge
Foreign Wills Act & holographic/nuncupative wills
If holographic or nuncupative will is valid in the state where it was executed or in the state where the decedent was domiciled at execution or at death, then NY will admit it to probate
Lawyer Malpractice
ROL– Under NY law (minority jurisdiction), only a person in privity w/ the lawyer can sue for legal malpractice. This means will BENEFICIARIES do not have a cause of action against the lawyer to recover what they should have got.
Court of Appeals Case Derivation- No privity to third parties, BUT there is privity btw the testator and the lawyer and the estate rep can sue the estate planning lawyer on behalf of the testator for tax mistakes.
