Wills Flashcards
What is a will?
A will is a testamentary instrument that includes instrument that merely appoints a personal representative or guardian or revokes or revises another will - including electronic wills.
What is a codicil?
A codicil is an amendment to a will.
What are the requirements for a will?
(LC.TI.TC.PE.)
(1) legal capacity
(2) testamentary intent - testator intends doc to serve as will; proved by - self-proof affidavit, title doc on first page, and language - makes apparent testator intended to make disposition effective at death
(3) testamentary capacity - aka mental capacity
(4) proper execution (formalities)
What are the types of wills?
(H.N.N.E.)
(1) Holographic - handwritten will, not normally recognized in Florida unless it complies with formalities (out-of-state holographics not recognized)
(2) Nuncupative - oral will, FL doesn’t recognize
(3) Notorial - oral declaration made to notary who drafts it + signed + witnessed
(4) Electronic - method + execution: signatures can be electronic; presence can be through audio-video IF (a) supervised by notary (b) individuals authenticated & signing as part of online notarization session (c) witness HEARS signer make statement that signer has electronically signed (d) notary must verify info: ask series of questions - determine if signor is vulnerable adult (e) if they are a vulnerable adult they cannot sign electronic will and must do physical
How are wills proved? What can be used as proof?
The following serve as prima facie proof of proper execution:
(1) attestation clause - states facts that occurred during will execution; where the witnesses sign
(2) self-proof affidavit - notarized addition to the will;
a sworn testimony that execution of will complied with FL law;
signed by the testator + witnesses;
signed at the time of execution or later;
its effect is that it allows the will to be admitted to the probate court without further evidence;
takes effect upon the death of the testator
Discussing the appointment of a personal representative, what is a personal representative and what are the requirements?
(1) Fiduciary appointed by the court to administer the estate
(2) BY signing affidavit …
Requirements are:
(a) legal age (over 18 sui juris)
(b) FL resident
(c) BANK exception
Discussing the appointment of a personal representative, what makes a personal representative UNQUALIFIED?
(1) convicted of felony
(2) mentally/physically unable to perform duties of PR
(3) under 18
(4) non resident, but there are exceptions:
(a) legally adopted child or adoptive parent of decedent
(b) related by lineal consanguinity to decedent;
(c) spouse, bro/sis, uncle/aunt, or nephew/niece of decedent, or someone related by lineal consanguinity to any such person; OR
(d) spouse of person otherwise qualified in this section
Discussing the appointment of a personal representative, how is the priority order determined in a testate estate?
- PR stipulated in will, or his successor
- Person selected by majority in interest of persons entitled to estate
- Devisee under will - if more than one devisee applies, the ct. can select
Discussing the appointment of a personal representative, how is the priority order determined in an intestate estate?
- surviving spouse has priority
- if no SS - eligible person selected by majority in interest of heirs appointed
- Ct can select (heir in nearest degree will be selected if appropriate); ct. will post a bond
Discussing the formalities of execution, what are the requirements?
(1) Will must be written - will can be hand-written
(2) Testator’s signature - testator must sign the will at the end, OR name subscribed at the end of will can be by some other person (i.e., when testator has a broken hand) in testator’s presence and by testator’s direction
(3) 2 Witnesses - testator must sign in presence of at least 2 witnesses; OR acknowledgment that testator previously signed the will
(4) Witnesses Signatures - must be in the presence of the testator AND in the presence of each other at the same time, together. There is no requirement where the witnesses sign.
[There are two tests for presence. Florida uses the Line of Vision test which means each party must be capable of seeing the other in act of signing. The Conscious Presence test means the parties are in same general area and fully cognizant of testator’s execution.]
(5) Witnesses must be any competent person. Interested (one who would inherit) is ok. The notary cannot witness.
What is legal capacity in Florida?
(1) Age - 18 or older
(2) Emancipated - minor emancipated by marriage or by the court
What is testamentary capacity?
Testamentary capacity requires having sound mind. Sound mind has THREE elements.
(1) ability of testator to mentally understand in a general way the nature and extent of property to be disposed of;
(2) testator’s relation to those who would naturally claim substantial benefit from will;
(3) general understanding of practical effect of will
^ these are determined by questionnaire AT THE TIME OF EXECUTION
Who has the burden of proof for mental incapacity?
To prove mental incapacity the burden is on the contestant by preponderance of the evidence
If the testator is already declared incapacitated, the burden of proof is on the proponent.
What is insane delusion?
TWO PARTS:
Testator believes something is true when in fact it is false
The misbelief is irrational - no credible evidence to support
What is undue influence?
THREE ELEMENTS:
Influence exerted on testator
Influence overpowers testator’s free agency
The will is not executed “but for” the undue influence
