Will Validity

Question 1

What are the requirements for the execution of a valid Will?

Answer 1

7 POINT TEST

1) Testator is 18+ YRS OLD;

2) Testator signs OR by proxy (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 intended to be a signature
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 testator’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 document) by declaring it to be her Last Will and Testament

6) Signature from 2 ATTESTING WITNESSES
* * NOTE: NY does NOT require that each witness sign in EACH OTHER’S presence OR sign in the testator’s presence

7) Entire execution ceremony MUST be completed within 30 days of FIRST witness’s signing

Question 2

What is a codicil?

Answer 2

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

Question 3

Who has the burden of proving due execution of a Will?

Answer 3

The Will proponent has the burden of proving DUE EXECUTION

Question 4

What are the rules re: Witnesses’ and proving due execution?

Answer 4

If will is NOTSELF-PROVING,BOTH attesting witnesses’s must testify to the facts nec. to show due execution…

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: 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 clause 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

** An attestation clause is not required in NY

Question 5

What is a self-proving affidavit?

Answer 5

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 nececessary then

NOT required in NY

Question 6

What is the interested witness statute?

Answer 6

Designed to prevent FRAUD

If a will beneficiary is an ATTESTING WITNESS → Will is VALIDBUTgift VOID UNLESS

A. at least 3 ATTESTING WITNESSES sign & the other 2 are disinterested;OR
B. interested attesting witness would be an INTESTATE DISTRIBUTEE, IF Testator had died without 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.

Question 7

What is the NY Foreign Wills Act?

Answer 7

States that Will IS admissible to probate in NY IF validly executed under “E-N-D”

- Law of the state where it was Executed;
- NY law; OR
- 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 provisions

Question 8

Are holographic and nuncupative wills valid in NY?

Answer 8

Holographic will = written entirely in the testator’s handwriting and signed, BUT NOT witnessed
** NOTE: remember IF witnessed, then VALID

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

Question 9

Do the intended benefiicaries have a cause of action for negligence against a lawyer in preparing a Will?

Answer 9

NO because there is no privity of contract between the intended beneficiaries and the lawyer

BUT, there IS privity of contract between the lawyer and the PERSONAL REPRESENTATIVE of the estate