Will Execution

Question 1

Valid will

Answer 1

Most states require that the will be signed by the testator and two witnesses, who must sign in the testator’s presence. In most states, the testator must sign the will (or acknowledge the will or signature) in the presence of each witness.

Question 2

Holographic wills

Answer 2

The UPC and a majority of states also recognize holographic wills, requiring that all or most of the will be in the testator’s handwriting and signed by the testator, but with no witnesses.

Question 3

Testamentary intent

Answer 3

For a will to be valid, the testator must intend that the particular instrument operate as his will. The use of language such as “This is my last will” raises a presumption of testamentary intent, but the presumption is rebuttable. Generally, extrinsic evidence is admissible to show testamentary intent and, presumably, lack of testamentary intent.

Question 4

Interested witnesses

Answer 4

At common law, if one fo the two necessary attesting witnesses was a beneficiary, the will could not be probated. Most states have purging statutes that eliminate the interest rather than render the will invalid; thus, the will is valid, but the gift to the witness-beneficiary is void.

Question 5

Integration

Answer 5

Integration of a will is the process of embodying several sheets of paper or documents into a single, entire will, validated by a single action of execution. The will proponent must show that the pages were present when the will was executed and were intended by the testator to be part of the will. Witness testimony and other extrinsic evidence is admissible to prove integration requirements. Intent and presence are presumed when: there is a physical connection of the pages, there is an internal coherence by provisions running from one page to the next, or the pages, when read together, set out an orderly dispositive plan.

Question 6

Codicil

Answer 6

A codicil is a later testamentary instrument that amends, alters, or modifies a previously executed will. A codicil need not be a separate document; it may appear on the same piece of paper as the will it amends.

Question 7

Testamentary capacity

Answer 7

The standard for capacity to make a will is quite low. One may have capacity to make a will even though one lacks capacity to make a contract. The law presumes that every person is of sound mind unless the contrary is shown. Testamentary capacity, however, is measured at the time the will is executed. The burden of proof is on the wheel contestant. Contestant must show that when the will was executed the test did not have sufficient capacity to:

1. understand the nature of his act(that he was writing a will),
2. know the nature and character of his property,
3. know the objects of his bounty, and
4. relate these factors to formulate a disposition of property according to a plan.