Will Execution

Question 1

Will

Answer 1

A will is an instrument executed with certain formalities that directs the disposition of a person’s property at death.

Question 2

Valid Will

Answer 2

A valid will requires:
Legal Capacity
Testamentary Capacity
Testamentary Intent
Compliance with Formalities

Question 3

Legal Capacity

Answer 3

18 or older and of sound mind

Question 4

Testamentary Capacity

Answer 4

Must understand
-that he is executing a will
-the nature/extent of his property
-who is family is

And can formulate an orderly scheme of disposition

Question 5

Testamentary Intent

Answer 5

Must have present intent that the instrument operate as their will.
-intended to dispose of property
-intended the disposition to occur only on death
-intended the instrument to accomplish this disposition

Question 6

Formalities

Answer 6

In writing (minority allows electronic form)
Signed by testator (any marking) in the presence of witnesses
Signed by two attesting witnesses in the presence of testator (UPC allows notarization)

Question 7

Interested Witnesses

Answer 7

Common Law: if a witness was a beneficiary, he could not attest to the will

Modern Law: if a witness is a beneficiary, he can attest to the will but the bequest to him may be void under a purging statute unless he would have received it regardless of the will (no purging in UPC)

Question 8

Presence

Answer 8

Majority (conscious presence test): each party was conscious of where the other parties were and what they were doing and the act of signing took place within the awareness of the other parties

Minority (scope of vision test): the person signing was in such close proximity that they could have seen the signing had they looked

Question 9

Holographic Wills

Answer 9

One that is in the testator’s handwriting, with no attesting witnesses. Majority/UPC allow holographic wills as long as the material portions are in handwriting and the will is signed by testator. If the state allows holographic wills, they will also likely accept handwritten changes made after the will is executed (i.e., holographic codicil).

Question 10

Codicils

Answer 10

A codicil modifies a previously executed will and must itself be executed with the same formalities. The will and codicil are treated as one instrument, from the date of the codicil’s execution. A codicil can incorporate (and thus validate) an otherwise invalid will.

Question 11

Incorporation by Reference

Answer 11

Treats the incorporated material as if it were actually written out in full in the will. Incorporation requires:
-intent to incorporate
-the document is in existence at the time the will is executed (except for reference to a list that specifies distribution of personal property items)
-the document is sufficiently described in the will

Question 12

Acts/Facts of Independent Significance

Answer 12

The identity of a beneficiary who will take under a will, or the property that will be disposed of under a will, can be determined by facts or events occurring outside of the will that have their own significance apart from their effect on the disposition in the will.