Wills

Question 1

When is a will valid?

Answer 1

a will is valid if it complies with the applicable state law

Question 2

Under the Uniform Probate Code (UPC), when is a written will valid?

Answer 2

• if its execution complies with the law of the place where executed
• if its execution complies with the law of the place of testator’s domicile, abode, or nationality
  at the time of death
• if its execution complies with the law of the place of testator’s domicile, abode, or nationality
  at the time of signing the will

Question 3

What do most states require for will formalities?

Answer 3

most states require a will to be (1) in writing and (2) signed by at least two individuals

Question 4

What are the requirements for a valid will under the Uniform Probate Code (UPC)?

Answer 4

a will be (1) in writing, (2) signed by the testator (or by some other individual in the testator’s conscious presence and by the testator’s discretion), and (3) either (a) signed by at least two individuals within a reasonable time after witnessing the signing of the will, or (b) notarized

Question 5

What is another way to say that the will was witnessed?

Answer 5

“attested” another way to say the will was witnessed

Question 6

What kind of intent does a valid will require?

Answer 6

A valid will require intent by the testator to create the will; A will is invalid if the challenger proves that the testator lacked testamentary capacity

Question 7

What is admissible to prove intent?

Answer 7

Extrinsic evidence is admissible to prove intent

Question 8

Under the majority view and the UPC, when is a will signed within the testator’s presence?

Answer 8

Under UPC, when a witness is in the testator’s presence and the will is signed within the range of the testator’s senses (the conscious presence test)

Question 9

• Under the majority view and the UPC, is a will signed within the testator’s presence when a witness is in the testator’s
  presence and the will is signed within the range of the testator’s senses?

Answer 9

This known as the conscious presence test

Question 10

Under the minority view, when is a will signed in the testator’s presence?

Answer 10

Under the minority view, a will signed by a witness in the testator’s presence and it’s signed within the testator’s line of sight
(the line-of-sight test)

Question 11

Why must a will meet all the requirements of the state’s law?

Answer 11

Under common law, a will is invalid if it does not meet all the requirements of the state’s law

Question 12

When will some states find a will valid?

Answer 12

Some states find a will valid if the decedent substantially complied with the state’s requirement

Question 13

What is the harmless error rule under the Uniform Probate Code (UPC)?

Answer 13

The harmless error rule states that an improperly executed will can still be valid

Question 14

Under the harmless error rule, when can an improperly executed will be valid?

Answer 14

Under the harmless error rule, an improperly executed will be valid if the party seeking to have it validated proves
the decedent intended the writing to be his will

Question 15

What evidentiary standard is required under the harmless error rule?

Answer 15

Under the UPC’s harmless error rule, an improperly executed will can still be valid if the party seeking to have it validated
proves (1) by clear and convincing evidence, (2) that the decedent intended the writing to be his will

Question 16

What does a departure from the necessary execution formalities make difficult to prove?

Answer 16

Generally, a greater departure from the necessary execution formalities will make it harder to prove the testator’s intent

Question 17

When will a document be integrated into a will?

Answer 17

Under the Doctrine of Integration, will a document be integrated into a will if (1) the testator intended it to be part of the will, and (2) the document was physically present at the will’s execution

Question 18

Which pages will be integrated into the will?

Answer 18

all pages of a will that are together when the last page is signed and witnessed are integrated and deemed validly executed

Question 19

How is integration proved?

Answer 19

• integration can be proved by extrinsic evidence
• integration can be proved by witness testimony

Question 20

Under common law, who must sign a will?

Answer 20

Under common law, a will must be witnessed by two disinterested witnesses

Question 21

What is a disinterested witness?

Answer 21

A disinterested witness is one who is not receiving a benefit under the will

Question 22

What are the 2 exceptions that allow a will to remain valid – even if it is signed by an interested witness?

Answer 22

A will remains valid after being witnessed by an interested witness if the interested witness is an heir; or if another disinterested witness was present so that there were still a total two disinterested witnesses

Question 23

What is a codicil?

Answer 23

A codicil an instrument made after a will is executed

Question 24

What does a codicil do?

Answer 24

A codicil modify, amend, or revoke a will

Question 25

What formalities must a codicil satisfy?

Answer 25

To be valid, a codicil must also satisfy all of the same formalities as a will

Question 26

What is the effect of a codicil?

Answer 26

A codicil republish the will

Question 27

What does republishing the will mean?

Answer 27

Republishing the will mean the courts will consider the original will to have been executed on the same date as the codicil

Question 28

When the original will was signed by a disinterested witness, what is the effect of a validly executed codicil?

Answer 28

A validly executed codicil cure any interested witness issues with the original will

Question 29

What have courts held about codicils’ abilities to republish a valid will?

Answer 29

Courts have held that a codicil cannot republish an invalid will

Question 30

What is a holographic will?

Answer 30

a holographic will is a handwritten will and is not witnessed

Question 31

How do some states treat holographic wills?

Answer 31

some states reject holographic wills and treat them as invalid

Question 32

What additional step do some states require for holographic wills?

Answer 32

some states require the writing of a holographic to be subscribed by the testator

Question 33

What does “subscribed by the testator” mean?

Answer 33

“subscribed by the testator” just means that the testator must sign at the end of the will

Question 34

What is the effect of a valid holographic codicil?

Answer 34

a valid holographic codicil revokes any earlier valid will

Question 35

What happens if there is a conflict between a valid will and a valid codicil?

Answer 35

a valid holographic codicil revokes any earlier parts of a valid will that conflict with the codicil

Question 36

What does unattested mean?

Answer 36

unattested means that no third party witnessed the signing of the will or formally established the will’s authenticity

Question 37

What does bequest mean?

Answer 37

a bequest is a gift of personal property that is given in a will or a trust

Question 38

What does devise mean?

Answer 38

a devise is a gift of real property that is given in a will or a trust

Question 39

When is a bequest through an unattested document valid?

Answer 39

In most states, a document or writing may be incorporated into a will by reference if (1) it existed when the will was executed,
(2) it is sufficiently described in the will, and (3) the testator intended to incorporate it into the will

Question 40

When does the Uniform Probate Code (UPC) allow a document or writing bequeathing tangible personal property to be
incorporated into a will?

Answer 40

if (1) it was
signed by the testator, and (2) describes with reasonable certainty the items and devisees..

Question 41

UPC, tangible personal property v. devise for real property?

Answer 41

• Under the UPC, if the bequest is for tangible personal property, then the document may be prepared after
  execution, but if the devise is for real property, then the document must be in existence when the will is executed

Question 42

What is an act of independent significance?

Answer 42

• a will can dispose of property by making reference to acts and events that have significance apart from their effect on the gift
  made by the will
• an act of independent significance can used to fill in any gaps of a will if it has significance outside of the will-making process

Question 43

Why does the act need to have independent significance before it is used to fill in the gaps in a will?

Answer 43

If the act has independent significance does reduces the possibility of undue influence or fraud because the change in
beneficiary has significance apart from change in the testator’s will

Question 44

Why does the act need to have independent significance before it is used to fill in the gaps in a will?

Answer 44

• If the act has independent significance does this reduce the possibility of undue influence or fraud because the change in
  beneficiary has significance apart from change in the testator’s will?
• Must the act of independent significance have some lifetime significance/motive?
• If a will leaves a gift “to the person named in the document in my safe deposit box ‘X’,” and also leaves a gift “to the person
  named in the document in my safe deposit box ‘Y’,” and (1) the testator names his new wife as the beneficiary of box X and (2)
  names his friend as the beneficiary of box Y, which is an act of independent significance?
• Is getting married an example of an act of independent significance because it has significance apart from a bequest and so
  the wife will take?
• Is there no purpose independent of making a gift and so the beneficiary gap will not be filled and the friend will not take?

Question 45

What are 3 ways to revoke a will?

Answer 45

a will can be revoked (1) by physical act, (2) by a subsequent will or codicil, or (3) under the Dependent Relative Revocation
Doctrine

Question 46

When is a will revoked by physical act?

Answer 46

• a will is revoked by physical act if (1) the testator intended to revoke the will, and (2) the will is burned, torn, destroyed, or
  canceled by the testator

Question 47

Under the common law, when are words of cancellation valid?

Answer 47

Under the common law, are words of cancellation valid only if they come in physical contact with words of the will (i.e., written
over)?