Will Formalities Flashcards

Question

traditional/majority view | INTERESTED WITNESS

Answer 1

USED IN TN Does not result in denial of probate of will itself BUT beneficiary witness is purged from will Exceptions 1. there are two other disinterested witnesses 2. witness-beneficiary would have been an heir if there was no will = takes lesser of amount given her under the will or her intestate share

Answer 2

1. supernumerary rule | 2. whichever is lesser rule

Answer 3

there are two other disinterested witnesses

Answer 4

witness-beneficiary would have been an heir if there was no will = takes lesser of amount given her under the will or her intestate share

Answer 5

- Does not automatically purge interested witness | - Allows interested witness to take UNLESS witness-beneficiary exerted undue influence

Answer 6

- A will executed outside this state in a manner prescribed by TN statutes inclusive, - or a written will executed outside this state in a manner prescribed - by the law of the place of its execution or - by the law of the testator’s domicile at the time of its execution, - shall have the same force and effect in this state as if executed in this state in compliance with those sections

Answer 7

strict compliance = no dispensing power Failure to meet any requirement = wills is invalid EVEN IF court is perfectly satisfied with testamentary intent

Answer 8

- Failure to comply with one of the requirements does not automatically invalidate a will - Dispensing power permits court to validate a will that fails to strictly comply with formalities (requires proponent of the will to prove clear and convincing evidence that the testator intended that document to be his will)

Answer 9

Cannot dispense with requirement of signature Exception = wrong will signed - Intend to execute reciprocal wills, get wills switched, mistakenly sign each other’s - court should be able to dispense with signature requirement - b/c wife manifested intent when she signed husband’s will AND husband’s will is evidence of what she wanted her will to be

Answer 10

- A will that complies with core formalities that is signed by a testator and notarized is valid without attesting witnesses - Not valid in other jurisdictions for lack of TWO attesting witnesses

Answer 11

= will written in the testator’s own handwriting for which there are fewer than the requires two witnesses

Answer 12

``` Holographic will is valid if 1. Written in the testator’s own handwriting AND 2. Signed by her AND 3. Intended to be a will = don’t require witnesses ``` (Adopted by about half of the states)

Answer 13

Recognizes holographic wills | = doesn’t require any witness to handwritten will

Answer 14

1. Testamentary intent 2. Signature and material provisions must be in T’s handwriting 3. Testator’s handwriting proved by 2 witnesses 4. Dated

Answer 15

= Does the will have to be entirely written in the testator’s own handwriting?

Answer 16

1. Strict test (entire document) 2. Surplusage doctrine (entire document) 3. TN material provisions 4. UPC evidence of testamentary intent

Answer 17

a) = portions not handwritten are ignored b) When all the words appearing on a paper in the handwriting of the testator are sufficient to constitute a valid holographic will, the fact that other words or printed matter appear thereon not in the handwriting of the testator and not affecting the meaning of the words in such handwriting shall not affect the validity of the will

Answer 18

a) = Only words written in testator’s handwriting counts

Answer 19

Rule = Holographic will is valid if material provision is in the testator’s own handwriting and signed by her - Codifies the surplusage rule Material provisions = defined as words identifying the property and the beneficiaries who are to receive it - Same as UPC

Answer 20

whether the handwritten portion has to disclose testamentary intent

Answer 21

1. Switched wills 2. Informal holographic wills 3. Sham wills 4. Conditional wills

Answer 22

= explicitly says indication that testamentary intent can be supplied by surrounding circumstances or extrinsic evidence - Doesn’t have to appear in (handwritten) will itself

Answer 23

= testamentary intent must be handwritten

Answer 24

1. Dated - Required in some states - Advisable in all states 2. Nothing else this was a dumb way to set up this flashcard i haven't slept in 12 years i miss my children

Answer 25

= oral wills

Answer 26

1. may be made only by a person in imminent peril of death, whether from illness or otherwise AND 2. shall be valid only if the testator died as a result of the impending peril, and must be: a. Declared to be the testator's will by the testator before two disinterested witnesses AND b. Reduced to writing by or under the direction of one of the witnesses within thirty days after such declaration AND c. Submitted for probate within six months after the death of the testator

Answer 27

No nuncupative will shall be proved a. until fourteen days after the death of T NOR b. until process has issued to call in the surviving spouse or next of kin or both if convenient to contest it If the surviving spouse and next of kin or any kin a. are not so found OR b. are out of the state = notice shall be given by publication, once a week for four successive weeks a. in county newspaper OR b. (if no county newspaper) in the one published nearest the courthouse of the county - and this notice shall be a prerequisite to the establishment of the will - also, if residence be known, by mailing a copy of the notice to them at that address by registered mail

Answer 28

Will invalid = intestacy | Conclusive presumption

Answer 29

1. Reformation | 2. Harmless error

Answer 30

Equitable power of courts to rewrite legal documents so as to reflect the parties’ true intent

Answer 31

In most jurisdictions, clear and convincing evidence of fraud or mistake is necessary to reform a legal document document Including TN

Answer 32

- Courts are reluctant to reform wills - When reformation is used, it is usually limited to deleting provisions, as opposed to adding provisions

Answer 33

1. Dispensing power | 2. Substantial compliance

Answer 34

1. probate in common form | 2. probate in solemn form

Answer 35

= an extremely informal procedure - no requirement that interested parties be given notice of the proceedings - a judicial hearing is not required to have the will admitted to probate

Answer 36

= much more formal affair - All interested parties are entitled to receive notice of the proceedings and of their right to participate in them - must be a judicial hearing at which the will is formally offered for probate - At the hearing, the proponent of the will must produce all living witnesses who attested its execution for examination - court must enter an order accepting or rejecting the will for probate in solemn form BUT there is no requirement that the court enter the order on the same day that the in solemn form hearing is held

Answer 37

1. Prior to the entry of an order admitting a will to probate in common form or in solemn form, the will can be challenged directly by means of a will contest

Answer 38

a) The attestation clause makes out a prima facie case that the will was duly executed b) As a result the will may be probated even though the witnesses are unavailable or attempt to contradict proper execution

Answer 39

Used by TN

Answer 40

- After the testator’s death, the executor must establish that the will was duly executed - This is often accomplished by calling one or more of the subscribing witnesses to testify in court - A self-proving affidavit may substitute for the trial testimony of the subscribing witnesses

Answer 41

1. One step | 2. Two step

Answer 42

= Executed with the will

Answer 43

= Executed after the will

Answer 44

1. wills = tn (compare to UTC) intestacy = tn (compare to UTC) 2. trusts = UTC (or majority if UTC silent) 3. non-probate transfers = majority 4. powers of appointment = majority 5. uniform prudent investment act = adopted by tn 6. uniform principle and income act = adopted by tn