Wills Flashcards
TESTAMENTARY CAPACITY A testator need not have the higher level of capacity required for contracts. A testator simply must have the capacity to understand: • The nature of their act—that is, that the testator is executing a will • The nature and extent of their property • The persons who are the natural objects of their bounty (family members) • The above factors and be able to formulate an orderly scheme of disposition
TESTAMENTARY INTENT
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 evidence is admissible to show that
an instrument was not meant to have any effect (for example, that
it was a sham will).
EXECUTION OF ATTESTED WILLS
To be valid and admissible to probate, a will must meet the formal
requirements of due execution imposed by the statutes of the appropriate
state. The formalities required vary from state to state, but most
states require that:
* The will or codicil must be in writing. However, at least 10 states
permit wills to be in electronic form (“e-wills”) without any physical
document
* The will or codicil be signed by the testator, or by another at the
testator’s direction and in their presence
* There be two attesting witnesses
* The testator sign the will (or acknowledge their previous signature
or acknowledge the will) in each of the witnesses’ presence; and
* The witnesses sign in the testator’s presence
Some states impose one or more of the following additional requirements:
* The testator must sign at the end of the will
* The testator must “publish” the will (that is, declare to the witnesses
that the document is the testator’s will); and
* The witnesses must sign in the presence of each other
Interested Witnesses
At common law, a witness who was also a beneficiary was not
competent, and the will could not be probated unless there were
two other competent witnesses. All states now provide that the will
is still valid, but the bequest to the interested witness may be void
under a “purging statute” unless they are supernumerary or would
have taken a share as an heir if the will had not been probated.
“Presence” Requirement
Some states require the testator to sign the will in the witnesses’
presence, and the witnesses to sign in the testator’s presence. To
determine when a person is in another’s presence, most courts use
the “conscious presence” test.
Uniform Probate Code—Court Can Ignore
Harmless Errors
Even though a will is not executed in accordance with all of the
required statutory formalities (for example, there is only one witness),
the UPC gives the court the authority to ignore harmless errors.
The defectively executed will can be given effect if the will proponent
establishes by clear and convincing evidence that the testator
intended the document to be their wil
HOLOGRAPHIC WILLS
A holographic will is one that is entirely in the testator’s handwriting
and has no attesting witnesses. States vary with regard to how much
material may be typewritten before the will no longer qualifies as
holographic, but the UPC and most states that recognize holographic
wills accept a will that contains some typewritten text as long as the
portion not in the testator’s handwriting is not material
ORAL WILLS
Most states and the UPC do not recognize oral (or “nuncupative”)
wills. The small number of states that allow oral wills do so only for
the disposition of personal property and only if made by: (1) soldiers
or sailors (with some states requiring an armed conflict in progress);
or (2) any person during their last sickness or in contemplation immediate death. Two or more witnesses to the spoken words are
often needed.
