Wills Flashcards
When is a will valid?
a will is valid if it complies with the applicable state law
Under the Uniform Probate Code (UPC), when is a written will valid?
- 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
What do most states require for will formalities?
most states require a will to be (1) in writing and (2) signed by at least two individuals
What are the requirements for a valid will under the Uniform Probate Code (UPC)?
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
What is another way to say that the will was witnessed?
“attested” another way to say the will was witnessed
What kind of intent does a valid will require?
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
What is admissible to prove intent?
Extrinsic evidence is admissible to prove intent
Under the majority view and the UPC, when is a will signed within the testator’s presence?
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)
- 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?
This known as the conscious presence test
Under the minority view, when is a will signed in the testator’s presence?
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)
Why must a will meet all the requirements of the state’s law?
Under common law, a will is invalid if it does not meet all the requirements of the state’s law
When will some states find a will valid?
Some states find a will valid if the decedent substantially complied with the state’s requirement
What is the harmless error rule under the Uniform Probate Code (UPC)?
The harmless error rule states that an improperly executed will can still be valid
Under the harmless error rule, when can an improperly executed will be valid?
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
What evidentiary standard is required under the harmless error rule?
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
What does a departure from the necessary execution formalities make difficult to prove?
Generally, a greater departure from the necessary execution formalities will make it harder to prove the testator’s intent
When will a document be integrated into a will?
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
Which pages will be integrated into the will?
all pages of a will that are together when the last page is signed and witnessed are integrated and deemed validly executed
How is integration proved?
- integration can be proved by extrinsic evidence
- integration can be proved by witness testimony
Under common law, who must sign a will?
Under common law, a will must be witnessed by two disinterested witnesses
What is a disinterested witness?
A disinterested witness is one who is not receiving a benefit under the will
What are the 2 exceptions that allow a will to remain valid – even if it is signed by an interested witness?
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
What is a codicil?
A codicil an instrument made after a will is executed
What does a codicil do?
A codicil modify, amend, or revoke a will
What formalities must a codicil satisfy?
To be valid, a codicil must also satisfy all of the same formalities as a will
What is the effect of a codicil?
A codicil republish the will
What does republishing the will mean?
Republishing the will mean the courts will consider the original will to have been executed on the same date as the codicil
When the original will was signed by a disinterested witness, what is the effect of a validly executed codicil?
A validly executed codicil cure any interested witness issues with the original will
What have courts held about codicils’ abilities to republish a valid will?
Courts have held that a codicil cannot republish an invalid will
What is a holographic will?
a holographic will is a handwritten will and is not witnessed
How do some states treat holographic wills?
some states reject holographic wills and treat them as invalid
What additional step do some states require for holographic wills?
some states require the writing of a holographic to be subscribed by the testator
What does “subscribed by the testator” mean?
“subscribed by the testator” just means that the testator must sign at the end of the will
What is the effect of a valid holographic codicil?
a valid holographic codicil revokes any earlier valid will
What happens if there is a conflict between a valid will and a valid codicil?
a valid holographic codicil revokes any earlier parts of a valid will that conflict with the codicil
What does unattested mean?
unattested means that no third party witnessed the signing of the will or formally established the will’s authenticity
What does bequest mean?
a bequest is a gift of personal property that is given in a will or a trust
What does devise mean?
a devise is a gift of real property that is given in a will or a trust
When is a bequest through an unattested document valid?
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
When does the Uniform Probate Code (UPC) allow a document or writing bequeathing tangible personal property to be
incorporated into a will?
if (1) it was
signed by the testator, and (2) describes with reasonable certainty the items and devisees..
UPC, tangible personal property v. devise for real property?
- 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
What is an act of independent significance?
- 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
Why does the act need to have independent significance before it is used to fill in the gaps in a will?
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
Why does the act need to have independent significance before it is used to fill in the gaps in a will?
- 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?
What are 3 ways to revoke a will?
a will can be revoked (1) by physical act, (2) by a subsequent will or codicil, or (3) under the Dependent Relative Revocation
Doctrine
When is a will revoked by physical act?
- 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
Under the common law, when are words of cancellation valid?
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)?
