Week 3 Class Notes - Test 1

Question 1

The person creating a will must have (1), which involves age (usually 18+) and soundness of mind.

Answer 1

1. testamentary capacity

Question 2

The testatory must have sound mind at the time (1). If the person becomes incapacitated later, the will is (2). Capacity is (3) and there is no need to state it in the will. The (4) will make the determination, and the person (5) has the burden of proof.

Answer 2

1. the will is written
2. still valid
3. presumed
4. court
5. alleging lack of capacity

Question 3

4 components to the Cunningham Rule of testamentary capacity

Answer 3

1. Testator must know the natural objects of his bounty (Must know immediate familial relationships, even if no property is left to these people)
2. Testator must know his or her bounty (must known the nature and extent of his property)
3. Testator must know he or she is making a will (name, sound mind, lack of duress, etc. included in exordium clause)
4. Testator must have mental competence (no insane delusions. Lucid intervals ok)

Question 4

(1) must be clear on the face of the document.

Answer 4

1. intent

Question 5

Most commonly alleged to contest a will. Must be unlawful–fradulant. Dominant party gets dominated party to write them into a will.

Answer 5

Undue influence

Question 6

3 more general requirements of a valid will (in addition to testamentary capacity and intent)

Answer 6

1. in writing (typed)
2. signed by tetsatory (or in testator’s name)
3. signed by 2+ witnesses

Question 7

In lieu of a testator (who is unable) signing himself, another may sign in his name in the testator’s (1) and at the testator’s (2)

Answer 7

1. conscious presence

2. direction

Question 8

Witnesses must sign a (1) after witnessing (2) or (3).

Answer 8

1. reasonable time
2. signing of the will
3. testatory’s acknowledment of that signature

Question 9

A holographic (entirely handwritten) will is valid whether or not witnessed as long as the (1) and (2) are in the handwriting of the testator. No (3) or (4) are necessary.

Answer 9

1. signature
2. material provisions
3. witnesses
4. date

Question 10

Material provisions, in case law, generally mean (1)

Answer 10

1. they can stand alone. If you remove everything else (e.g., the typed part if not fully holographic), the will is stil valid.

Question 11

Conclusion of the cigarette box (holographic will) case

Answer 11

No clear provision for distribution, so the material provisions not present. No holographic will.

Question 12

(1) are orally spoken to 2 witnesses. They are NOT recognized by (2)

Answer 12

1. Nuncupative

2. Arizona

Question 13

Regarding signatures, Arizona has no clarification (1) and the testatory may sign with (2). If a will must be signed at the bottom, it is required to be (3). Every state requires (4) witnesses.

Answer 13

1. where to sign
2. an X
3. subscribed
4. two

Question 14

1. witness says they saw the testator sign

2. witness signs under signature of signer to verify signature

Answer 14

1. attesting to a will

2. subscribing

Question 15

A witness does NOT have to (1)

Answer 15

1. know what is in the will

Question 16

A person who is (1) may be a witness. In Arizona, the person does not have to be (2). The person may be a (3).

Answer 16

1. generally competent to be a witness
2. 18+
3. beneficiary in the will

Question 17

negates the need for witnesses to appear in court to testify they saw the signer sign the will (done before a notary public)

Answer 17

self-proving clause

Question 18

4 things the testator swears to when signing the will

Answer 18

1. of age
2. of sound mind
3. not under duress
4. ok for witnesses to sign

Question 19

4 things the witnesses swear to when signing a will

Answer 19

1. saw testator sign
2. testator appeared to be of sound mind
3. witness was in presence of the testator when he signed
4. witnesses were in presencec of each other when they signed

Question 20

If you are simply changing the name of an executor or guardian/conservator, a (1) is ok. It must be (2) to the will. If you are changing (3), retype the will–a codicil can get “lost:

Answer 20

1. codicil (amendment)
2. attached
3. major provisions

Question 21

6 features of a separate list to a will

Answer 21

1. may refer to items of TANGIBLE PERSONAL PROPERTY
2. list will not override provisions of the actual will
3. Admissible in handwriting OR typed/signed by the testator
4. can be in existence at the time of the testator’s death OR before execution of the will
5. may be altered by the testator as long as the old list is destroyed (no duplicates)
6. the list can have no effects apart from those on the list

Question 22

Never (1) on the original will, and make sure the (2)! Courts will not know (3).

Answer 22

1. write
2. client knows this
3. who altered the will

Question 23

2 means of revoking a will in Arizona

Answer 23

1. executiing a subsequent will (most common) (revokes all former wills) (do not have to expressly state as long as new will does not appear to be a supplement)
2. performing a revocatory act (burning, tearing, cancelling ANY part–even if the language is not touched!)

Question 24

(1) involves reviving an old will in whole or part because the new one is not yet valid. Prevents intestacy.

Answer 24

1. Dependant relevant revokation

Question 25

A (1) does not revoke a will, but a divorce will, by (2), revoke all parts related to the (3)

Answer 25

1. channge of circumstance
2. operation of law
3. ex-spouse

Question 26

one will for two parties.

Answer 26

joint will

Question 27

A mutual will is two wills that (1) plus contain a clause that (2). This is also a (3).

Answer 27

1. say the same thing
2. they will never change the wills
3. contract

Question 28

In Arizona, just having a a joint will is NOT a (1). The will must meet (2).

Answer 28

1. contract not to revoke

2. statutory provisions

Question 29

A will contest (1). It is extremely (2). Usually regards (3) or (4).

Answer 29

1. challenges the validity of the will
2. hard to prove
3. undue influence
4. testamentary capacity

Question 30

An (1) attempts to cut anyone out of the will who contests to its validity. In Arizona, this is not allowed because you cannot (2) as long as there is (3).

Answer 30

1. In Terrorem Clause
2. penalize someone contesting a will
3. probably cause

Question 31

(1) mean a person with an interest in the estate cannot testify to contradict the will. This is because there is no (2)!

Answer 31

1. dead man’s statute

2. cross-examination of a dead person