Wills 1 Flashcards
At death…
At death, property passes either by will or intestacy.
Any property not passing under a will for any reason passes according to the statutory scheme of intestate succession.
The only way to avoid intestacy is to leave a valid will disposing of all probate property.
Will formation:
R: To be valid, a will must be executed with the statutory formalities (signed writing) by a person (testator) with testamentary intent and testamentary capacity.
.
Statutory formalities
Testator
With testamentary INTENT, and
testamentary CAPACITY
testamentary INTENT
(the document is intended to be their will)
Testamentary capacity
(the testator understands their actions and the document’s implications)
Will revocation… when? By What?
A will may be revoked at any time prior to death by operation of law, subsequent written instrument, or physical act.
operation of law,
subsequent written instrument, or
physical act
Will contest…
Who can bring one?
Grounds?
A will offered for probate may be contested by any interested party, usually on the ground of lack of capacity, undue influence, fraud, or mistake.
what law applies to validity and effect of the will?
Real property - law of state where property located.
Personal property: law of state of testator’s domicile at the time of death.
For out-of-state and foreign wills, savings statute = will is admissible to probate in a jurisdiction if the will has been executed in accordance with the law of:
(1) that jurisdiction,
(2) the state where the will was executed,
(3) the testator’s domicile at the time of the will’s execution, or (4) the testator’s domicile at death.
These rules apply to determine whether will is admissible to probate. Once the will is admitted to probate, local law governs the construction and application of the will’s provisions.
Requirements for ALL wills
[SWITCh]
- Testamentary capacity) at time the T executes the will.
- Testamentary intent—present intent to make a will.
Statory Formalities:
3. Writing
4. Signature of testator, or by another at the testator’s direction and in their presence
Testamentary capacity
(testamentary capacity) Lower then K capacity.
Need capacity at time will was executed.
Testatmor must be 18 and only needs capacity to understand:
a. Nature of act
- that T is executing a will.
b. Nature and extent of T’s property
c. People who are the natural objects of testator’s bounty (family)
d. Nature of disposition (able to formulate an orderly scheme of disposition)
*in a will contest, Contestant must prove that testator could not understand these.
fact that the testator was old, ill, possessed a failing memory,
or was an alcoholic or drug addict does not mean they lacked testa- mentary capacity. mentally challenged individual can make a will as long as they meet the requirements above.
a person adjudicated incompetent/insane not conclusively inane, may b able to execute a will during lucid interval.
Testamentary Intent.
When unclear?
The testator must have present intent that the instrument operate as their will.
Promises to make a will in the future and ineffective deeds are not given effect as wills.
Parol Ev allowed to show intrument was not meant to have any effect (sham will).
When it is not clear whether an instrument was intended to be testamentary, testamentary intent will be found only if it is shown that the testator:
(1) intended to dispose of the property;
(2) intended the disposition to occur only upon his death; and
(3) intended that the instrument in question accomplish the disposition
Types of wills
Formal attested wills
or
Holographic will
Requirements for Formal Attested Wills.
UPC?
SWITCh requirements: Writing, testamentary intent, testamentary capacity, signature (any mark by T with intent)… AND,
Will be attested by Two competent attesting witnesses
a. Testator must, in each witnesses’ presence, either:
(i) acknowledge will, or
(ii) acknowledge previous signature or
(iii) sign the will.
b. Witnesses must sign in testator’s presence
(order and location of signatures dont matter as long as part of a single contemporaneous transaction).
Under UPC, valid if attested to by two witnesses or signed by a notary under UPC)
3. UPC harmless error: defectively executed will can be given effect if clear and convincing evidence testator intended it to be his will
Most states require exact compliance, rather than substantial compliance, with all requirements for a valid will.
However, the UPC permits the court to excuse minor errors using a substantial compliance test.
Some states impose one or more of the following additional require- ments:
• The testator must sign at the end of the will
• The testator must “publish” the will (that is, declare to the wit-
nesses that the document is the testator’s will); and
• The witnesses must sign in the presence of each other
Presence
Conscious presence = satisfied if each party was conscious of where the other parties were and what they were doing, and the act of signing took place within the general awareness and cognizance of the other parties.
Scope of vision (Minority) = presence requirement is satisfied only if the person was in such close proximity that they could have seen the signing had they looked. .
Telephone or computer calls do NOT count as presence.
Attestation clasue
recites the elements of due execution and is prima facie evidence of those elements.
Self-Proving Affidavit
A self-proving affidavit recites that all the elements of due execution were performed and is sworn to by the testator and witnesses before a notary public.
