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Wills & Thrills > Will Formalities > Flashcards

Will Formalities Flashcards

1
Q

TN recognizes 3 types of wills

FORMALITIES

A
  1. Formal wills AKA Attested wills (all states)
  2. Holographic wills (majority)
  3. Noncupative wills AKA Oral wills (minority)
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2
Q

6 typical formalities

CORE FORMALITIES

A
  1. Testator must be 18 or older
  2. Will must be written
  3. Must be written with testamentary intent
  4. Signature requirement
  5. Two attesting witnesses to testator’s signing
  6. Publication by testator
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3
Q

will must be written

CORE FORMALITIES

A

= Serves an evidentiary function

oral evidence is notoriously unreliable

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4
Q

testamentary intent

CORE FORMALITIES

A

No document that is not intended to be a will is a will

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5
Q

signature requirement

CORE FORMALITIES

A

= Testator must sign the will

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6
Q

sufficient signatures

CORE FORMALITIES

A
  • Any mark
  • Initials
  • Someone else signs at the testator’s direction and in the testator’s presence
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7
Q

proxy signature

CORE FORMALITIES

A
  1. at the testator’s direction AND

2. in the testator’s presence

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8
Q

subscription

CORE FORMALITIES

A

advisable

BUT not required by UPC or TN

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9
Q

purpose of signature requirement

CORE FORMALITIES

A
  • Serves the interest of showing finality

- Serves evidentiary purpose

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10
Q

two attesting witnesses to testator’s signing

CORE FORMALITIES

A
  1. Must sign the will

2. Must witness or acknowledge testator’s signing of the will

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11
Q

publication by T

CORE FORMALITIES

A

testator shall signify to the attesting witnesses that the instrument is the testator’s will

  • Required by TN
  • Not required by UPC
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12
Q

additional requirements

CORE FORMALITIES

A
  1. integration
  2. location of signature
  3. witness presence
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13
Q

evidence of integration

ADDITIONAL REQUIREMENTS

A

Evidence of integration would include

  1. Stapling or other fastening
  2. Page numbering
  3. Initialing
  4. Consistency
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14
Q

integration doctrine

ADDITIONAL REQUIREMENTS

A

= addresses the question of which sheets of paper, present at the time of execution, were intended to be part of the will

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15
Q

required location of signature

ADDITIONAL REQUIREMENTS

A

signature must be at the end of the will

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16
Q

2 placements of signature

ADDITIONAL REQUIREMENTS

A
  1. Clause below signature present before execution

2. Clause below signature added after execution

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17
Q

clause below signature present before execution

ADDITIONAL REQUIREMENTS

A

Rule = Everything above the signature is good, everything below will not be given ineffective

UPC/majority does not have this requirement (allow T to sign anywhere on will)

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18
Q

clause below signature added after execution

ADDITIONAL REQUIREMENTS

A

Rule = everything above signature is valid, addition is ineffective
UNLESS go through formalities again

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19
Q

witness presence

ADDITIONAL REQUIREMENTS

A
  • All states require that the testator be in the witness’ presence when the testator signs
  • Some states require that the witnesses be in the testator’s and each other’s presence
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20
Q

2 tests

WITNESS PRESENCE

A
  1. line of sight test

2. conscious presence test

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21
Q

line of sight test

WITNESS PRESENCE

A

Minority/traditional test
TN VIEW

  • In each other’s presence only if they could see each other sign were they to look
  • Can be no impediment to visual contact between testator and witnesses

Case example = vanity screen in hospital room between testator and witnesses, so court denied probate

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22
Q

conscious presence test

WITNESS PRESENCE

A

Modern/majority
UPC VIEW

  • In each other’s presence if they are conscious of where each other was and what each other was doing
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23
Q

special upc provisions

FORMALITIES

A
  1. allows notarial wills

2. dispensing power

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24
Q

interested witness

FORMALITIES

A

= Arises when one of the beneficiaries under the will is also attesting witnesses

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25
Q

traditional/majority view

INTERESTED WITNESS

A

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
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26
Q

2 traditional/majority exceptions

INTERESTED WITNESS

A
  1. supernumerary rule

2. whichever is lesser rule

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27
Q

supernumerary rule

INTERESTED WITNESS

A

there are two other disinterested witnesses

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28
Q

whichever is lesser rule

INTERESTED WITNESS

A

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

29
Q

upc provision

INTERESTED WITNESS

A
  • Does not automatically purge interested witness

- Allows interested witness to take UNLESS witness-beneficiary exerted undue influence

30
Q

tn choice of law statute

FORMALITIES

A
  • 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
31
Q

traditional rule

DISPENSING POWER

A

strict compliance = no dispensing power

Failure to meet any requirement = wills is invalid
EVEN IF court is perfectly satisfied with testamentary intent

32
Q

upc provision

DISPENSING POWER

A
  • 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)
33
Q

limits of dispensing power

DISPENSING POWER

A

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
34
Q

notarial wills

UPC PROVISIONS

A
  • 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
35
Q

holographic wills

FORMALITIES

A

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

36
Q

upc view

HOLOGRAPHIC WILLS

A 
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)

37
Q

tn view

HOLOGRAPHIC WILLS

A

Recognizes holographic wills

= doesn’t require any witness to handwritten will

38
Q

tn holographic will requirements

HOLOGRAPHIC WILLS

A
  1. Testamentary intent
  2. Signature and material provisions must be in T’s handwriting
  3. Testator’s handwriting proved by 2 witnesses
  4. Dated
39
Q

surplusage key inquiry

HOLOGRAPHIC WILLS

A

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

40
Q

4 surplusage tests

HOLOGRAPHIC WILLS

A
  1. Strict test (entire document)
  2. Surplusage doctrine (entire document)
  3. TN material provisions
  4. UPC evidence of testamentary intent
41
Q

doctrine

SURPLASAGE

A

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

42
Q

strict test

SURPLASAGE

A

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

43
Q

tn material provisions rule

SURPLASAGE

A

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

44
Q

testamentary intent issue

SURPLASAGE

A

whether the handwritten portion has to disclose testamentary intent

45
Q

testamentary intent common problems

SURPLASAGE

A
  1. Switched wills
  2. Informal holographic wills
  3. Sham wills
  4. Conditional wills
46
Q

upc evidence of testamentary intent

SURPLASAGE

A

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

47
Q

traditional testamentary intent rule

SURPLASAGE

A

= testamentary intent must be handwritten

48
Q

other execution formalities

HOLOGRAPHIC WILLS

A
  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
49
Q

noncupative wills

TYPES OF WILLS

A

= oral wills

50
Q

tn view

NONCUPATIVE WILLS

A
  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
51
Q

tn proof of

NONCUPATIVE WILLS

A

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
52
Q

general rule

FAILURE TO COMPLY WITH FORMALITIES

A

Will invalid = intestacy

Conclusive presumption

53
Q

exceptions

FAILURE TO COMPLY WITH FORMALITIES

A
  1. Reformation

2. Harmless error

54
Q

reformation

FAILURE TO COMPLY WITH FORMALITIES

A

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

55
Q

required proof

REFORMATION

A

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

Including TN

56
Q

application

REFORMATION

A
  • Courts are reluctant to reform wills
  • When reformation is used, it is usually limited to deleting provisions,
    as opposed to adding provisions
57
Q

2 harmless error doctrines

FAILURE TO COMPLY WITH FORMALITIES

A
  1. Dispensing power

2. Substantial compliance

58
Q

2 types of probate proceedings in tn

PROOF OF EXECUTION

A
  1. probate in common form

2. probate in solemn form

59
Q

probate in common form

PROOF OF EXECUTION

A

= 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
60
Q

probate in solemn form

PROOF OF EXECUTION

A

= 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
61
Q

entry of order

PROOF OF EXECUTION

A
  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
62
Q

attestation clause purpose

PROOF OF EXECUTION

A

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

63
Q

self-proving affidavit in tn

PROOF OF EXECUTION

A

Used by TN

64
Q

self-proving affidavit purpose

PROOF OF EXECUTION

A
  • 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
65
Q

2 self-proving affidavit types

PROOF OF EXECUTION

A
  1. One step

2. Two step

66
Q

one-step self-proving affidavit

PROOF OF EXECUTION

A

= Executed with the will

67
Q

two-step self-proving affidavit

PROOF OF EXECUTION

A

= Executed after the will

68
Q

applicable law

EXAM INSTRUCTIONS

A
  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

Wills & Thrills (12 decks)

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