Wills

Question 1

Testamentary Formalities

Answer 1

1. 18 y.o. +
2. written
3. testamentary intent
4. signed
5. two attesting witnesses

Question 2

Signature Placement

Answer 2

1. signature before a clause present at execution:
   a. majority/UPC = valid
   b. minority = clauses above are good; below are bad
2. signature before a clause present after execution:
   a. will is valid, clause is not

Question 3

Holographic Wills

Answer 3

UPC/half = valid if material provisions are in T’s handwriting and signed
a. material provisions = property and beneficiaries

other half = not allowed unless 2 attesting witnesses

Question 4

Witness Presence

Answer 4

majority = conscious presence test
a. valid if in each other’s presence and conscious of where they are/what they’re doing

minority = scope of vision test
a. valid only if they could see each other sign if they were to look

Question 5

Conflict of Laws Issues

Answer 5

majority/UPC = valid in:

a. place of will execution
b. domicile at death OR
c. domicile at execution

minority = invalid**

Question 6

Interested Witnesses

Answer 6

majority/old rule = will is valid but beneficiary-witness loses legacy unless:

a. supernumerary = 2 other attesting witnesses OR
b. beneficiary would be an heir if no will = takes lesser of will share or intestate share

minority/UPC/modern = abolished interested witness rule

Question 7

Self-Proved Will

Answer 7

T and witnesses sign self-proving affidavit under oath before a notary = formalities of execution are presumed

Question 8

Revocation by Physical Act

Answer 8

1. intent to revoke

2. physical act (burn/torn/canceled/obliterated)

Question 9

Sufficiency of a Physical Act

Answer 9

majority = cancellations must touch the language of the will; otherwise, the will is not revoked

minority/UPC = cancellation can appear anywhere on the will

Question 10

Physical Act on Copies

Answer 10

if will is executed in duplicate, act can be on either copy

if will is xerox copied after execution, act must be on the will itself–not the copy

Question 11

Physical Act Rebuttable Presumptions

Answer 11

Will in T’s possession from execution to death and found in mutilated condition afterward = presumption that T mutilated with intent to revoke

Will last seen in T’s possession and control and not found after T’s death = presumption T destroyed it with intent to revoke

Question 12

Revocation by Proxy

Answer 12

1. intent to revoke
2. physical act
3. by another person at T’s direction AND
4. in T’s conscious presence

Question 13

Lost Wills Statute

Answer 13

1. if will has been lost or destroyed
2. formal proceeding
3. proponents have burden of proving the contents
4. by clear and convincing evidence
5. can use copy and one witness

Question 14

Attorney Liability

Answer 14

can be sued in negligence for messing up revocation or execution

Question 15

Codicil

Answer 15

amendment to will

requires same testamentary formalities

Question 16

Revocation by Inconsistency

Answer 16

majority/UPC = revocation of a will revokes all codicils; revocation of a codicil does not revoke the will

a. codicil makes no reference to will but contains slightly inconsistent statements = read to the extent possible and later document revokes the inconsistencies
b. second will has no residuary clause = presumptively a codicil
c. second will has a residuary clause = presumptively revokes the first will in its entirety

Question 17

Revocation by Operation of Law–Divorce

Answer 17

a. divorce = revokes all provisions in favor of ex-spouse; construe as if predeceased T
b. separation w/ property settlement = treat same as divorce
c. separation w/o property settlement = no effect; spouse takes
d. divorced spouses remarry = spouse takes

Question 18

Interlineations

Answer 18

changes after execution (i.e., crossing out a value and changing the number)

interlineations are invalid unless:

a. will is re-executed OR
b. will is republished by codicil

Question 19

Dependent Relative Revocation

Answer 19

1. can disregard a revocation
2. if based on mistake of law/fact
3. provided the court thinks T would not have revoked but for the mistake

basically, it is applied when undoing a revocation comes closer to T’s intent than the revocation

Question 20

Revival

Answer 20

UPC/some states = original will is revived by revocation of a later will only if:

1. the original will still exists
2. T wanted it revived AND
3. the later will was revoked by physical act

other states = original will is not revived; must re-execute or republish by codicil

if not revived = try DRR

Question 21

Incorporation by Reference

Answer 21

1. writing must be in existence at time will was executed
2. will must manifest an intent to incorporate the document
3. will must sufficiently describe the writing to permit its identification

holographs can incorporate non-handwritten material by reference

Question 22

Exception to Incorporation

Answer 22

majority = can incorporate memo by reference