Will Formation

Question 1

What are the four requirements to make a valid will?

Answer 1

1. Capacity.
2. Intent.
3. Legal capacity.
4. Compliance with statutory formalities/state law.

Question 2

What are the requirements for testamentary capacity?

Answer 2

1. Know the nature & extent of property.
2. Understand who your friends and family are (“natural objects”)
3. Disposition (do you know what you’re doing?)
4. Coherent plan.

Question 3

What is the burden of proof as to mental capacity?

Answer 3

A person is presumed to have mental capacity. The burden is on the person asserting lack of capacity.

Question 4

What are the UPC Formalities for creating a valid will?

Answer 4

1. In writing.
2. Signed by the testator or someone at testator’s direction.
3. Either witnessed within a reasonable time OR notarized.

Question 5

What are the two approaches for signing at the testator’s direction?

Answer 5

1. Conscious presence.
2. Line of sight.

Line of sight is the majority view.

Question 6

Is extrinsic evidence allowed to show intent?

Answer 6

Yes.

Question 7

What is conscious presence?

Answer 7

The UPC uses conscious presence which means the signer on behalf of the testator must be “within the range of the testator’s senses.”

This is a minority rule.

Question 8

What are the three approaches as to what happens if formalities are not followed?

Answer 8

At common law, strict compliance was require and the will is invalid.

The UPC uses the harmless error rule.

Some states uses the “substantial compliance rules.”

Question 9

What is the burden of proof under the harmless error rule?

Answer 9

Clear and convincing evidence that the decedent intended the writing to be his will.

Question 10

What is the Doctrine of Integration?

Answer 10

Under the Doctrine of Integration, a document will be integrated into a will if the testator:

(1) intended it to be part
of the will; AND

(2) the document was physically present at
the will’s execution.

Question 11

How can integration be proven?

Answer 11

By extrinsic evidence or expert testimony.

Question 12

What is the common law rules as to interested witnesses?

Answer 12

Under the common law, the signing must be witnessed by TWO disinterested witnesses (individuals who are not receiving a benefit under the will).

Question 13

What are the modern rules as to interested witnesses?

Answer 13

1. If the interested witness is an heir, then any gift to that witness is reduced to their intestate share).
2. As long as another witness was present such as we still had two disinterested witnesses.

Question 14

What is a codicil?

Answer 14

A codicil is an instrument made AFTER a will is executed that
modifies, amends, or revokes a will.

Question 15

What are the requirements of a codicil?

Answer 15

A codicil must comply with the same formalities as a will.

Question 16

What is the effect of making a valid codicil?

Answer 16

A valid codicil republishes the will, meaning courts will consider the original will to have been executed on the same date
as the codicil.

Question 17

Can a valid codicil cure an interested witness issue?

Answer 17

Yes.

Question 18

Can a codicil save an invalid will?

Answer 18

Most courts say NO.

Question 19

What is a holographic will?

Answer 19

A holographic will is an informal, handwritten will that is NOT witnessed.

It’s a creature of statute. It may or may not be recognized by a specific state.

Question 20

Can you have a contract to execute mutual wills?

Answer 20

Yes.

Question 21

When is a contract to execute mutual wills enforceable?

Answer 21

1. It must expressly state that the parties intend their wills to be a binding contract between them.
2. A specific
   reference to the contract upon which the joint wills are based.
3. Specific, express intent that the parties
   desire the contract.

Question 22

What happens if a party breaches a contract to execute mutual wills?

Answer 22

Should a party breach a valid agreement
to execute mutual wills, a court will probate the new will and impose a constructive trust in favor of the original
intended beneficiaries under the contractual will.

Question 23

Can a contract to execute mutual wills be revoked?

Answer 23

The UPC does not take a position. Some states recognize revocation if there is sufficient notice before one of the parties dies.

Question 24

Can you include a provision that prohibits a first marriage or requires divorce?

Answer 24

No, that would be against public policy.

Question 25

Can you ever restrain marriage?

Answer 25

Yes.

Question 26

When can you restrain marriage?

Answer 26

1. It is a restraint on remarriage (i.e. a condition tied to the surviving spouse’s interest)

OR

2. The intended purpose was to take care of a person’s daily needs until they can obtain support through marriage.

Question 27

If no executor is appointed, what is the order of priority?

Answer 27

1. Spouse
2. Other devisees
3. Other heirs
4. Any creditor.

Question 28

How long must a creditor wait to request to be appointed as an executor?

Answer 28

45 days.