Validity of Wills

Question 1

Requirements of a duly executed will

Answer 1

7 point test:

1) testator is 18 +
2) testator signs (or proxy)
3) signature at “the end thereof”
4) testator signs (or acknowledges her earlier signature) in the presence of each witness
5) publication
6) two attesting witnesses sign; and
7) ceremony completed in 30 days

Question 2

Burden of proof– due execution

Answer 2

will proponent– the person who offers the will for probate (usually the executor)

Rule: the the will proponent had the burden of proving due execution

witnesses must testify, one can testify if other predeceases him

Question 3

attestation clause

Answer 3

below T’s signature, above witness’ signature

attestation clause is prima facie evidence of the facts presented

Question 4

self-proving affidavit

Answer 4

attached to the back of the will

witness signs a sworn statement in the presence of an attorney that recites all the statements we made in court

it can serve as a substitute for live testimony (unlike attestation clause)

Question 5

the attestation clause and the affidavit

Answer 5

are not legally required in any state, but its not malpractice not to include them