Will Validity Flashcards
What is the applicable law when the subject of the will is real property?
Law of situs (i.e., where the property is)
What is the applicable law when the subject of the will is personal property?
Law of domicile at death
When will NY consider a will valid? (3)
NY considers a will valid IF it complies with one of the following:
- NY law;
- The law of the state where the will was executed; OR
- The law of the state of Decedent’s domicile at death or when the will was executed.
What are the four requirements to check for when determining whether a will is valid?
- Legal capacity of the testator (must be 18)
- Testamentary capacity (sound mind)
- Testamentary intent
- Formalities
How old must a testator be to create a valid will?
18
What are the five elements of the requirement for testamentary capacity (i.e., sound mind) w/r/t creating a valid will?
To have a sound mind, the testator MUST:
- Understand the action (i.e., must understand he’s making a will);
- Comprehend the effect of the action (i.e., understand that he’s disposing of his property upon death);
- Know the general nature and extent of his property (exact knoweledge not req’d);
- Recognize his family members (i.e., must know his family situation and who has claims against him); AND
- Understand the dispositions (gifts) he is making in the will.
Can mentally challenged persons make a valid will?
Yes, provided they still meet the five elements of the sound mind requirement
What are the four common issues concerning testamentary capacity?
- Mentally challenged individuals (Can still make a will, if sound mind reqs are met!)
- Height of the standard (Lower standard than contractual capacity)
- Adjudication of capacity (Judged incapacity raises a rebuttable presumption of lack of testamentary capacity)
- When a sane person may lack capacity (e.g., under the influence of drugs/alcohol)
What is testamentary intent?
That you intended the specific instrument you created to be the will, not just instructions, etc.
What are the three required formalities for a valid will?
Valid will must be:
- In writing;
- Signed; AND
- Witnessed
What is a valid signature for purposes of satisfying the “signed” formality requirement for a valid will?
A signature is: (1) any mark (2) made with PRESENT INTENT (3) to authenticate the will.
(Valid signatures can be pretty much anything, including initials, nicknames, a stamp, an X, or a personal symbol)
When is a proxy signature aceptable to meet the “signed” formality requirement to create a valid will?
Proxy signatures allowed IF:
- Made in testator’s presence;
- Made at testator’s direction;
- Proxy signs his name;
- Proxy is not also a necessary witness; AND
- Proxy writes his address.
(N.B. Failure to write proxy’s address does NOT invalidate the will.)
Where does the testator or proxy sign the will?
What is the effect on any material after the signature?
Signature comes at the end of the document.
Anything after the signature is ineffective.*
(*BUT NOTE: The entire will may be ineffective IF the material following the signature is so consequential that giving effect to the material above the sig and not below would defeat T’s intent)
What must a testator do in the presence of each required witness to the will?
In the presence of each witness (not necessarily simultaneously), T must:
- Sign the will; OR
- Acknowledge a prior signature (i.e., confirm to the witness that a prior sig is in fact his)
What must a testator communicate to witnesses while signing?
T must communicate that the witnesses are witnessing a will and not some other document
