Will Validity Flashcards
Generally
a. Only way to avoid intestacy is to leave a valid will disposing of all probate property.
b. Most require exact compliance, rather than substantial compliance. Uniform Probate Code does permit excuse of minor errors.
Applicable law
a. Real Property—law of situs
b. Personal property—law of domicile at death.
c. Savings statute—most states will consider a will valid if it complies with
i. local law
ii. law where executed OR
iii. law of DC’s domicile at death or when will executed.
iv. Note that these rules apply only to determine whether the will is admissible to probate. Once the will is admitted to probate, local law governs construction and application of its provisions. Interpretation and instruction will be law of situs/ domicile of death.
4 requirements of valid will
- ***First see if problem says will is valid. **4 main requirements
a. Legal capacity
b. Testamantary capacity – sound mind
c. Tstamentary intetnt
d. formalities(1) writing 2) signed (almost any mark, or by proxy) 3) attested)
i. depends on type of will
1. attested (witnessed)
2. holographic (entirely in testator’s handwriting)
3. nuncupative (oral
Legal capacity
a. typically 18 y/o. some states recognize under 18 yo for will, for ex if married or in military.
Testamentary Capacity
must simultaenously hold 1) understanding of the action 2) effects of the will 3) know generally your property 4) know who your bounty is
a. Elements : 5
i. understand the action – must understand that you’re making a will
ii. comprehend effect of will—that will disposes of property when I die
iii. know general nature and extent of property – not exact knowledge
iv. Recognize natural objects of bounty (family members) – must know family situation and the claims against him, like know who spouse and kids are
v. must simultaneously hold elements in mind – must do these things together and form a reasonable judgment as to them
i. can be done by mentally challenged individuals
ii. lower standard than kual capacity
iii. An adjudication of mental incapacity to manage property does not conclusively establish that he/she lacked capacity to make, revoke, or amend a will. But, it does raise a rebuttable presumption that the protected person lacked the necessary capacity.
1. may execute will during lucid interval
iv. sane people may lack capacity at time, e.g. under influence of intoxicating substances or disorientation bc of accident/ med procedure
Testamentary Intent
– must intend the very instrument executed to be the will
a. Letter describing what will should contain ≠ intent to execute the will.
b. Parol evidence is admissible to show that something is a sham instrument.
Formalities required by most states
1) writing 2) signed (almost any mark, or by proxy) 3) attested if the jdxn doesn’t allow holographic wills
a. In writing
b. Signed by testator or proxy—signature is a mark made w present intent to authenticate the will. initials, nicknames, illegible, rubber stamp, X all count. Proxy signatures (for ex someone doesn’t have physical/ educational capacity) count if
i. in testator’s presence AND
ii. by the testators direction.
iii. some states don’t mandate location of signature, vary regarding whether witnesses must sign, usually doesn’t REQUIRE a date
c. Attestation (witnessing)
Attestation requirements
1) at least 2 witnesses 2) with capacity 3) in testator’s presence 4) (some states) publication
Requirements
i. at least 2 witnesses
ii. must have capacity - ability to testify in court, and minimum age for some states
v. Witnessing typically must occur in testator’s conscious presence—testator must be able to see it from his or her actual position,
1. some states—witnessing allow after testator died
2. most states—witnesses don’t have to attest together
3. Participating via skype or phone ≠ presence.
iii. publication—some states require publication. Witnesses must know they are witnessing a will. not required anywhere to know the contents of the will.
iv. using an interested witness, i.e witness is also a beneficiary
some states partially or totally void gifts to interested witnesses.
1. majority rule: attesting witness who is also a beneficiary can only take if she is one of three attesting witness, 2 of whom are disinterested
2. OR would have taken if she would have taken under intestacy. (but then just gets lesser of the legacy or her intestate share)
vi. Attestation clause—not required, but may act as prima facie evidence that will formalities were satisfied. Recites the elements of due execution, used if the witness forgets/ misremembers facts around the execution.
still have to bring witness into court, unlike self-proving affidavit, which means witness doesn’t have to come to court.
vii. Self-proving affidavit— where testator and witnesses swear under oath that requirements for a valid will were satisfied
1. purpose—allow probate to be cheaper, bc don’t have to bring witness into court to testify.
2. jdxns vary w/r/t how self-proving affidavit is done. some say the affidavit must be totally different
3. some states allow it to be last part of the will.
viii. Notarization—some states say if will is notarized don’t need witnesses
ix. UPC—allows court the authority to ignore harmless errors if the proponent establishes by clear and convincing evidence that testator intended the doc to be his will.
Holographic wills
a. will in testator’s handwriting
i. states vary w/r/t how much material must be in person’s handwriting to qualify .
for some, can download fillale form
b. Some states—if anything not in testator’s handwriting- invalid.
about half of the states allow for holographic wills
dont need witnesses
d. Allowed to make handwritten changes after the will is complete.
i. By contrast, in jdxns that do not recognize holographic wills, changes made after the execution of an ATTESTED will are not given effect, and may even serve as a revocation.
ii. But if the changes are made to an attested will in a jdxn that recognizes holographic wills—handwritten changes will be construed as a valid holographic codicil.
Oral Wills
a. recognized some places for limited circumstances, e.g. only for people in emergency, military, small amount of money. Must be 2 witnesses
Attorney liability for negligence
J. Attorney liability for negligence—attorney duty also runs to intended beneficiaries. For ex negligent preparation or execution. SOL begins to run on date of decedent’s death and not on date of execution.
Majoirty rule for using an interested witness to attest to a will
- majority rule: attesting witness who is also a beneficiary can only take if she is one of three attesting witness, 2 of whom are disinterested
- OR would have taken if she would have taken under intestacy.
- if so, will take the lesser of the legacy or her intestate share.
