What is required for a will to be validly executed?
- Follow specific formalities provided by state law.
- Most states require a will to be in a writing signed by the testator and witnessed by at least 2 people.
- Under UPC:
- Writing
- Signed by testator (or other in testator’s conscious presence & discretion) AND
- Either signed by at least 2 people within a reasonable time after witnessing the signing OR notarized.
What is testamentary intent?
A valid will requires present intent by the testator that the particular instrument operate as their will. If a testator lacked testamentary intent, a will will be deemed invalid.
Extrinsic evidence is admissible to prove intent.
What is testamentary capacity?
At the time of execution, the testator must have capacity to understand:
- The nature of their act,
- The nature and extent of their property,
- The persons who are the natural objects of their bounty, and
- The above factors and be able to formulate an orderly scheme of disposition.
**Appointment of a conservator/guardian alone doesn’t automatically establish lack of capacity.
What happens if a will does not meet all the requirements of the state’s law?
States that apply the strict compliance doctrine will render it invalid.
Under substantial compliance doctrine, valid if substantially complied with state’s requirements.
What satisfies the “presence” requirement for the two witnesses who must be present when the testator signs?
Majority = conscious presence: general awareness and cognizance of the other parties
Minority = scope of vision: could have seen the signing if they had looked
**Participating via telephone or computer is not “presence.”
What is the UPC’s harmless error rule?
An improperly executed will can still be valid if the party seeking to have it validated proves:
- By clear and convincing evidence,
- That the decedent intended the writing to be his will.
What is a holographic will?
Handwritten will that is not witnessed. Valid if signed by the testator and in the testator’s handwriting.
A valid holographic codicil revokes any earlier valid will to the extent it conflicts with the codicil.
Can interested witnesses witness the signing of a will?
No. But most states provide two exceptions when a will will be valid despite being witnessed by an interested witness:
- If the interested witness is an heir, their share is reduced to their intestate share, or
- If another disinterested witness was present so that there were still a total two disinterested witness.
What is the doctrine of integration?
A document will be integrated into a will if the testator:
- Intended it to be part of the will, and
- the document was physically present at the will’s execution.
Extrinsic evidence may be admitted.
What is a codicil?
An instrument made after a will is executed that modifies, amends, or revokes a will.
Must satisfy the same formalities (or holograph) as a will to be valid.
What is the effect of a valid codicil?
It republishes the will, meaning courts will consider the original will to have been executed on the same day as the codicil.
A valid codicil CANNOT republish an invalid will, but will cure any interested witness issues with the original will.
When does a will take effect?
At the time of the testator’s death. A beneficiary listed in a person’s will does not have any interest in the estate property prior to the testator’s death.
When is a will revoked by operation of law?
Marriage: no effect, but new spouse might take intestate share
Final divorce/annulment decree: all provisions in favor of a former spouse are revoked.
– ex treated as though predeceased testator
– Generally, provisions in favor of former spouse’s relatives remain intact, but not under the UPC.
When is a will revoked by physical act?
- Intent to revoke, and
- Physical act to an executed copy (burn, tear, destroy, cancel) at the testator’s request and in their presence.
Most states allow partial revocation and extrinsic evidence to show intent.
What is the effect of revocation on other testamentary instruments?
Revocation of a will revokes all codicils to it, but revocation of a codicil to a will does not revoke the entire will.
When is a will revoked by written instrument?
- When the subsequent instrument expressly revokes the previous will as a whole, or
- To the extent that the previous will conflicts with the new will.
When does the presumption of no revocation apply?
When the will is found in a normal location and there are no suspicious circumstances.
When does the presumption of revocation apply?
When the will was last seen in the testator’s possession and now can’t be found or is in a mutilated condition.
How can a revoked will be revived?
Common law: automatic revival if subsequent will was revoked.
UPC: only permitted when:
- Will revoked by physical act and testator intended revival, or
- Will revoked by subsequent instrument and will is republished by subsequent will or codicil.
UPC allows automatic revival only if the will was partially revoked (unless intent otherwise).
When does the doctrine of dependent relative revocation apply?
Cancels a revocation when testator revokes their will under the mistaken belief that another disposition of their property would be effective.
Look at testator’s intent.
