Will: Formalities

Question 1

Attested will

Answer 1

A will must be in writing, signed by the testator or ins the testator’s name by a third party in the conscious presence and by the testator’s direction and signed by at least two witnesses within a reasonable time after witnessing the signature of the testator

Question 2

Holographic wills

Answer 2

A holographic will is valid if the signature and material provisions of the document are in the testator’s handwriting and signed by the testator.

Question 3

Strict compliance

Answer 3

Under common law, a will must be executed in strict compliance with all the formalities requirements of the applicable Wills Act.

Question 4

Attestation clause

Answer 4

Describes exactly what the witnesses witnessed during the signing of the will and raises a presumption that the will is valid.

Question 5

Line of sight

Answer 5

Under the line of sight test, the T does not have to actually see the witness sign but must be able to see them were the T to look.

Question 6

Conscious presence

Answer 6

A witness is in the conscious presence of the testator if the testator, through sight, hearing, or general consciousness of events, comprehends that the witness is in the act signing.

Question 7

T/F: UPC requires either line of sight or conscious presence

Answer 7

False; UPC requires ONLY conscious presence

Question 8

Proxy signature

Answer 8

Signature signed on behalf of the testator who gave consent

Question 9

CL purging statute

Answer 9

If a beneficiary is also a witness to the will, they will be purged completely of their portion of the will

Question 10

Self-proving affidavit + attestation clause

Answer 10

The testator and the witnesses sign their names only once; one step self-proving affidavit.

Question 11

If there is an attestation and self-proving affidavit, is a witness testimony required?

Answer 11

No! Under UPC there is a conclusive presumption of due execution

Question 12

Separate self-proving affidavit

Answer 12

Provides written and sworn testimony and with this, no witnesses are required if will goes to probate.

Question 13

Substantial compliance

Answer 13

The will may still be valid if the instrument satisfied the purposes of the Wills act formalities.

Makes the presumption of invalidity rebuttable.

Question 14

Harmless error rule [UPC 2-503]

Answer 14

The will may still be valid if the proponent of the document or writing established by clear and convincing evidence that the decedent intended the document or writing to constitute a will, partial or complete revocation of the will, alteration to will or partial or complete revival of a formerly revoked will.

Question 15

Notarized will

Answer 15

A will if valid if it is signed by two witnesses or it is notarized.

Question 16

T/F: First gen holographic wills are valid if the material provisions are in the T’s handwriting

Answer 16

False!

MUST be entirely written, signed and dated in T’s handwriting

Question 17

Second gen holographic

Answer 17

Signature and material provisions are in T’s handwriting

Question 18

Surplusage theory [Second gen]

Answer 18

The handwritten portion of the instrument should be given effect as a holographic will if it makes sense without the text not written by the testator.

Question 19

Third generation

Answer 19

Requires only the material provisions to be handwritten and allows extrinsic evidence to establish testamentary intent