Will Validity Flashcards
Elements of valid will
- Signed by testator
- Witnesses (most states require at least 2)
- Present testamentary intent (to create a will)
- Testator is at least 18 years old
What are the rules around interested witnesses (having direct financial interest in the Will)?
- Common Law: interested Ws are NOT competent to witness
- Purge Theory*: if W (or W’s spouse) is interested, then it does NOT affect validity of the Will, but court will purge the excess of what W would take under intestate succession.
Holographic Will elements
- Informal, handwritten will
- Signed
- No Ws needed
Codicils
Supplements a will as an amendment. Has same formal requirements as will.
What is the plain meaning doctrine?
Words will have their plain meaning in the will
What is incorporation by reference?
Rule: Will may refer to documents outside of the Will.
Requires:
(1) The document is in existence at the time of execution
(2) The testator intends the document to be incorporated in the will, and
(3) The document is described in the will with sufficient certainty to permit its identification.
What is Anti-Lapse?
Anti-lapse statutes prevents the common law rule that testamentary gifts would lapse if the intended beneficiary had died.
Under Anti-Lapse, it prevents gifts from lapsing if the intended beneficiary is (1) related to the decedent, and (2) has an heir. If not, then common law rule applies.
What is abatement?
Rule: if the estate does not have sufficient $$ to pay debts or make gifts, the gifts will be reduced in a specific order:
(1) Intestate property > first to be reduced
(2) Residuary gift > left-over
(3) General gift > gift satisfied from general assets of the estate
(4) Demonstrative gift > a general gift from a particular source (e.g. “$10,000 to Bonnie from my USABank account.”)
(5) Specific gift > a gift of a particular piece of property (e.g. “my stamp collection to Hank”).
What are the 2 types of ademption?
There are 2 types:
1. Ademption by extinction > when a will makes a specific devise of property but that property is not with the estate at the time of death.
UPC: Look to the testator’s intent. (e.g. with the $$ he got from selling his stamps, T-Bone bought a painting. That painting could be a replacement of the stamps and be gifted to Hank instead.)
- Ademption by satisfaction > applies when testator satisfied a specific or demonstrative gift via an inter vivos transfer. Requires: (1) testator must intend for the gift to adeem, and (2) intent must be supported by a writing.
What happens if there is a mistake in the will?
Unless it’s a patent ambiguity (e.g. will says 1122 Main St. instead of 2211 Main St.), tough luck!