Will Validity Flashcards
WILL EXECUTION - FORMALITIES
What are the 7 reqs for the execution of a valid Will?
HIGHLY TESTED MATERIAL
1) WRITING;
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2) Testator signs OR by “proxy”
(i.e. someone else signs testator’s name)
Proxy signatures allowed if:
(1) in the testator’s PRESENCE,
(2) by the testator’s DIRECTION,
(3) proxy signs the PROXY’S NAME too,
(4) proxy not a necessary attesting witness, and
(5) proxy writes proxy’s ADDRESS
(but failure to do so does not invalidate the will)
Note: PROXY CANNOT be counted as an attesting witness
Note: Signature can be ANY mark intending to be a signature (e.g. an “X”)
Note: Signature must be VOLUNTARY
3) Signature is at “the END thereof”
(i. e. Testator or Proxy “Subscribes”)
Note: 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 in NY 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”
Note: Witnesses do not need to be told the contents of the will
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
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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 has self-proving affidavit – In uncontested cases, the SPA is sufficient to show due execution
If will is NOTSELF-PROVING OR is CONTESTED:
- BOTH attesting witnesses’s must testify to the facts nec. 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
BUT…
3. IF NO witness is available →Will proponents must PROVE signature of Testator & 1 witness
USE OF 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
Example attestation clause:
“On the above date, the testator declared to us that the foregoing instrument was her will and she asked us to serve as witnesses thereto. She then signed the will in our presence, we being present at the same time. We then signed the will as attesting witnesses.”
SELF PROVING AFFIDAVIT
What is a self-proving affidavit?
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
**NOT req’d in NY
INTERESTED WITNESS STATUTE
What are the ramifications of having an interested witness?
AN interested witness statute is designed to prevent FRAUD
If a will beneficiary is an ATTESTING WITNESS → Will is VALIDBUTany gift to the beneficiary witness is VOID UNLESS…
- at least 3 ATTESTING WITNESSES sign & the other 2 are disinterested;OR
- Interested attesting witness would be an INTESTATE DISTRIBUTEE, IF Testator had died w/o a Will (intestate)
If interestes witness is a intestate distributee then:
“Whichever is Least” Rule applies:
witness-beneficiary takes the LESSER 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.
NY FOREIGN WILLS ACT
What is the NY Foreign Wills Act?
The NY Foreign Wills Act = A Will IS admissible to probate in NY IF it was validly executed under: "E-N-D" Valid where: (E) EXECUTED in (N) NEW YORK; or where (D) DOMICILED when it was executed
(E) Executed VALIDLY under the law of the state where it was Executed;
(N) Would be valid under NY Law; OR
(D) Would be valid under the Law of the state where T was Domiciled when it was executed or when T died
NOTE→Once admitted to probate, NEW YORK law governs the ENTIRE construction and application of its prvns
HOLOGRAPHIC AND NONCUPATIVE WILLS
Are holographic and nuncupative wills valid in NY?
Holographic Will = A ENTIRELY HANDWRITTEN in the testator’s HANDWRITING and signed, BUT NOT witnessed
NOTE: remember IF it had been witnessed, then it would be VALID
Nuncupative Will = An oral will (via CD, DVD, etc)
————– BOTH VOID in NY
EXCEPTION:
- For armed services during declared or undeclared war (expires 1 year after discharge); OR
- For mariners at sea during declared or undeclared war (expires 3 years after discharge)
Foreign Wills Act application: if holographic will is executed in a state that recognizes them, or person was DOMICILED in a state that recognizes them when it was executed or when they die (even if executed somewhere else) it would be OK under Foreign Wills Act
LEGAL MALPRACTICE IN PREPARING WILL
Do the intended benefiicaries have a cause of action against a negl. lawyer in preparing a Will?
NO attorney malpractice liability to unhappy Beneficiaries 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
SO YES – Liability to personal representative of the estate b/c this is a survival action for tort recovery
REQUIREMENTS OF A VALID WILL — SUMMARY
The first step when confronted with a will or codicil (an amendment to a will) is to determine whether it is valid:
Look at:
1. Legal Capacity
- Testamentary Capacity — Sound Mind
- Testamentary Intent
- Formalities (7 point Test)
LEGAL CAPACITY FOR WILL EXECUTION
MUST be at least 18 years old to validly execute a Will
TESTAMENTARY CAPACITY — SOUND MIND FOR WILL EXECUTION
- Elements
a. Understand the Action
Must understand the business in which the testator is engaged, e.g., making a will.
b. Comprehend Effect of the Action
Must understand the effect of act in making the will
(e.g., the will is to dispose of property upon your death)
c. Know General Nature and Extent of Property
Must understand the general nature and extent of property; exact knowledge is not needed.
d. Recognize Natural Objects of Bounty (family members)
Must know family situation and the claims against him, (e.g., know who spouse and children are)
e. Understand the Dispositions
Must be able to understand the gifts the testator is
making in the will.
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- Testamentary Capacity Issues
a. Mentally challenged individuals can make a will as long as they meet the five elements.
b. Testamentary capacity is a LOWER standard than contractual capacity.
c. Adjudication of incapacity raises a rebuttable presumption of lack of testamentary capacity.
A person adjudicated incompetent may be able to executed a will during a “lucid interval.”
d. Sane person may lack capacity at times,
(e. g., under influence of intoxicating substances or disorientated because of accident or medical procedure.)
TESTAMENTARY INTENT FOR WILL EXECUTION
Testator must intend the very instrument executed to be the will.
