Will Formation Flashcards
Requirements for a Valid Will
- Legal Capacity
- Testamentary Capacities
- Testamentary Intent
- Formalities Satisfied
Legal Capacity for Valid Will
age 18 or older
Testamentary Capacity for Valid Will
Must be a **Sound mind **such that:
1. Understand nature of the act
2. Know general nature and extent of property
3. Recognize natural objects of bounty
4. Circumstances did not render person without capacity
Testamentary Intent
Intent that the very document being executed be a will
Attested Will Formalities
- Writing (on anything)
- Signature = any mark with present intent to authenticate a will
- Two Witnesses present at the same time
Harmless Error Doctrine and Will Formation
**Substantial Compliance **by clear and convincing evidence with Will formalities suffices for the **formalities requirement **
Requirements of the Witness Formality
- Both competent at time of execution
- Both present when testator signs or acknowledges
- Signs during Testator’s lifetime (need not be in each other’s presence)
- Knowledge that the document is a will
- **Disinterested unless **(i) presumption of wrongful gift rebutted; (ii) there are two other disinterested Ws; or (iii) also an intestate heir
Holograph Wills Requirements
- Testamentary Capacity
- Testamentary Intent
- Signature
- Material Provisions in T’s handwriting
NO Ws NECESSARY
Negative Wills
Statements of Disinheritance are ineffective
Signature by Proxy
Must be in presence of Testator
Methods of Revocation of Wills
- Presumption of Revocation not Rebutted
- By Physical Act
- By Subsequent Will
- By Operation of LAw
Rebuttable Presumption of Revocation
- Missing or Damaged Original
NOTE: a Will found in a normal place with no suspicious circumstances is presumed unrevoked
Revocation by Subsequent Will
- Express Revocation; or
- Inconsistent Provisions in Latest Will –> revoked only as to inconsistent parts
Revocation by Physical Act
- Intent to revoke
- Mental Capacity
- Physical Act such as burning, tearing, canceling obliterating
- IF Tearing: Must be torn through some material part
Proxy Revocation
- At testator’s request; and
- In testator’s presence
Partial Revocation by Physical Act
Only revocation of gift (not addition of gift) is allowed unless additional residue as byproduct
Revocation by act where there are Duplicate Wills
Act against one is enough
Issues regarding Revocation by Operation of Law
- Omitted Spouse
- Divorce
- Pretermitted/Omitted Child
Omitted Spouse
Keeps 1/2 CP plus takes intestate share unless:
1. Intentional omission
2. Provided for with non-probate transfer
3. Waived
4. Spouse was not a care custodian
Divorce after Execution
Only a final divorce will revoke provisions in favor of former spouse –> passes as if ex predeceased unless:
1. will expressly provides otherwise; or
2. spouses remarry
Pretermitted/Omitted Child
Where either (1) child born or adopted after will executed; (2) the child is unknown; or (3) child mistakenly believed deceased, that child **gets their intestate share **of testator’s estate shared pro rata by will beneficiaries unless
1. Intentional Exclusion
2. All or most of Estate left to Child’s Parents
Revival of Wills
GENERAL RULE: A revoked will may be probated where the the revoking will was itself revoked by physical act.
1. **Dependent Relative Revocation (DRR): **Where T revokes his will on mistaken belieft that another disposition would be effective, and but for the mistake T would not have revoked the will, the original will is revived
- Revocation of 2nd Will: Where Will 1 is valid and still in existence, Will 2 validly revokes Will 1, and Will 2 is revoked by physical act the court will look to T’s intent to determine if Will 1 is revived
