Will Creation, Revocation, and Kinds of Wills

Question 1

Elements of a Valid Will

Answer 1

1. It is in writing,
2. It is signed by the testator (or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction = proxy signer), and
3. it is signed by at least two individuals, each of whom signed within a reasonable time after they witnessed 1) the signing of the will, or 2) the testator’s acknowledgement of that signature, or 3) acknowledgment of the will

Question 2

Can a Witness to a will be an interested party in Michigan?

Answer 2

Yes

Question 3

Can a witness to a will be a minor?

Answer 3

Yes, as long as they understood the importance of testifying under oath at a judicial proceeding

Question 4

Can a witness to a Will also be a proxy signer?

Answer 4

Yes

Question 5

Do witnesses to a will have to sign in the presence of each other?

Answer 5

No

Question 6

Elements for a Holographic Will

Answer 6

Must be:

1. dated
2. signed by the testator (needs not be at the end of the will), and
3. the material portions must be in the testator’s handwriting

Question 7

Define: Dispensing Power - Catchall

Answer 7

Even if the requirements of a formal will are not met and the requirements of a holographic will are not met, if the proponents of the will shows by clear and convincing evidence that the testator intended the document to be their will or intended any change by addition or alternation, it will be enforced

Question 8

Testamentory Capacity

Answer 8

18 years or older and of sound mind

Question 9

What constitutes a sound mind?

Answer 9

At the time the individual executes the will, the individual is able to:

1. understand that he or she is providing for the disposition of their property at their death,
2. know the nature and extent of their property,
3. know the natural objects of their bounty, and
4. has the ability to understand in a reasonable manner the general nature and effect of his or her act in signing the will

Question 10

How to Prove Undue Influence

Answer 10

The burden of proof is on the contestants to show that undue influence was exerted, which caused the testator to make a gift they otherwise would not make

Question 11

When does a presumption of undue influence arise?

Answer 11

• the existence of a confidential fiduciary relationship between the grantor and fiduciary,
• the fiduciary or an interest she they represent benefits from the transaction, and
• the fiduciary had an opportunity to influence the grantor’s decision in that transaction

Question 12

Define: Will Codicil

Answer 12

An addition to the end of the will that adds to, subtracts from, or otherwise changes the will

Question 13

Requirement for a valid Codicil

Answer 13

Must be executed with the same requirements as a will

Question 14

What if someone writes multiple wills?

Answer 14

• Read them together
• The last will written is treated as a codicil to the first will and revokes the first will only to the extend of inconsistent provisions
• If the entire second will is inconsistent, the entire first will is revoked

Question 15

Conditional Will - General Rule

Answer 15

• If the testator intended that the will be valid only upon the happening of a condition precedent, the will is operative only if the testator fails to return or survive
• However, courts have interpreted most questionable cases to mean that the dangerous event or trip only inspired the testator to write a will. Thus, the will would still be valid and in force even if the testator passes at a later time.
• If a will EXPRESSLY indicates that the testator intended that the will be conditional, the courts will so hold

Note: argue both sides on the bar

Question 16

How to revoke a will

Answer 16

• Physical Act (tearing, destroying, canceling, obliterating, or burning - with the intent to revoke)
• Subsequent Testamentary Instrument
• Operation of Law (ex: divorce)

Question 17

Can a physical act of revocation be by someone other than the testator?

Answer 17

Yes, if it is:

at the testator’s request, and

in the testator’s conscious presence

Question 18

Revocation by Codicil

Answer 18

Does not revoke the will and it is presumed the testator intended to revive the provisions of the will as through the codicil had not been written

Question 19

General Presumption of Revocation

Answer 19

• When a will was either last seen in the testator’s possession or control and is either not found after death or is mutilated, the presumption is that they revoked it by physical act
• It is presumed that the testator was the one to do the mutilating
• Exception: does not arise if the will was last seen in the possession or control by someone who was adversely affected by its contents

Question 20

How to rebut a general presumption of revocation

Answer 20

One can admit evidence to show why the will is not found or why it is mutilated