Will Validity Flashcards
What are the 7 reqs for the execution of a valid Will?
“7 POINT TEST”
1) Testator is 18+ YRS OLD;
2) Testator signs OR by “proxy” (i.e. someone at testator’s direction and in her presence) PROXY must (i) also sign her name; (ii) CANNOT be counted as an attesting witness; AND (iii) must affix her address Signature can be ANY mark intending to be a signature (e.g. an “X”)
Signature must be VOLUNTARY
3) Signature at “the END thereof” Signing in the middle of the will WON’T DENY probate, BUT the words below the signature WILL NOT be given effect EXCEPT: the Will IS denied probateIF “all the meat” of the T’s intention is below the signature
4) Witnesses: Testator must sign in front of 2 ATTESTING WITNESSES (or “acknowledge” an earlier signature)
IF the Testator forgot to sign in front of witnesses, then it will be DENIED PROBATE
IF the Testator signs AFTER the witness, it’s not an issue AS LONG AS it’s “contemporaneous”
5) Publication: Testator must communicate to the witnesses that they are witnessing a WILL (and not some other legal doc) by declaring it to be her “Last Will and Testament”
6) Signature from 2 ATTESTING WITNESSES
NOTE: NY does NOT req that each witness sign in EACH OTHER’S presence OR sign in the testator’s presence
7) Entire “execution ceremony” MUST be completed w/in 30 days of FIRST witness’s signing
What is a codicil?
Later amendment OR supplement to a Will that must be executed with the same will formalities as a full Will
NOTE: Revocation of a codicil does NOT revoke the underlying will
Who has the burden of proving “due execution” a Will?
The Will proponent (i.e. the person who offers the Will for probate, usually the executor) has the burden of proving “DUE EXECUTION”
What are the rules re: Witnesses’ and proving due execution?
If will is NOTSELF-PROVING,BOTH attesting witnesses’s must testify to the facts necessary to show due execution…IF NOT, then…
IF 1 witness is dead, absent, incompetent, OR can’t be found diligently → testimony of the other witness is OK
IF NO witness is available →Will proponents must PROVE signature of Testator & 1 witness
NOTE ON ATTESTATION CLAUSE: an “attestation clause” (recites ALL the elements of due execution, appearing below the testator’s sig and ABOVE the witnesses signatures) is PRIMA FACIE evidence of the facts presented
An attestation cl is NOT a substitute for live testimony from witnesses (it’s just CORROBORATIVE of the witnesses’ testimony) Useful if the witness has a BAD MEMORY or is HOSTILE NOT req’d in NY
What is a self-proving affidavit?
Witnesses sign a sworn affidavit in the presence of a notary public ANY TIME after the will is executed (& attached to Will) that recites ALLstatements they would make if called to testify in court→ has the effect of sworn testimony
Will is admissible to PROBATE on strength of the sworn recitals in the affidavit UNLESS an interested party (heir or legatee that would be adversely affected by Will’s admission to probate) objects → proof of due execution IS necessary then
What is the interested witness statute?
Designed to prevent FRAUD
If a will beneficiary is an ATTESTING WITNESS → Will is VALIDBUTgift VOID UNLESS… 1) at least 3 ATTESTING WITNESSES sign & the other 2 are disinterested;OR
2) interested attesting witness would be an INTESTATE DISTRIBUTEE, IF Testator had died w/o a Will (intestate)
“Whichever is Least” Rule applies: witness-beneficiary takes the LESSOR of (i) the bequest under the will;OR (ii) his intestate share (i.e. his specific “bequest is VOID)
NOTE: an ATTESTING WITNESS can be named as EXECUTOR in the Will→ does not trigger statute.
What is the NY Foreign Wills Act?
States that Will IS admissible to probate in NY IF validly executed under:
1) Law of the state where it was Executed;
2) NY law; OR
3) Law of the state where T was Domiciled, either at time of Will execution ORdeath.
Once admitted to probate, NEW YORK law governs the construction and application of its prvns
Are holographic and nuncupative wills valid in NY?
Holographic will = written entirely in the testator’s handwriting and signed, BUT NOT witnessed
NOTE: remember IF witnessed, then VALID
Nuncupative will = oral will (via CD, DVD, etc)
BOTH VOID in NY EXCEPTION: for armed services during declared or undeclared war (expires 1 year after discharge) & mariners at sea (expires after 3 years after discharge)
Foreign Wills Act application: if holographic will is executed in state that recognizes them AND person dies in NY, it would be OK under Foreign Wills Act
Do the intended benefiicaries have a c/a against a negl. lawyer in preparing a Will?
NO b/c there is no privity of K b/t the intended beneficiaries and the lawyer
BUT, there IS privity of K b/t the lawyer and the PERSONAL REP of the estate
