Wills Flashcards
what is a will
A will is an instrument that directs the disposition of a person’s property when they die (i.e., will directs the disposition of testator’s property)
- No legal effect before testator’s death — operative upon death
- May be revoked or amended until testator’s death; named beneficiaries have only an expectancy interest (i.e., no property rights)
what are the requirements/formalities for a valid will
generally, in most states a will must be at least:
I Sure Wonder Why
1) Writing
2) Signed by testator — any mark intended to be a signature suffices
- If testator is incapable of signing, must be signed by another in her presence and by her direction
3 Made with testamentary intent (intent to create a will)
4) Signed by at least two witnesses — must see testator sign the will and must sign as witnesses in testator’s presence in a reasonable time
- Licensed notary satisfies this requirement in many states
- “Testator’s presence” = line or range of senses, although many states require witnesses be in testator’s line of sight
what is an attestation clause in a will
Clause included immediately between testator and witness signatures in a will, which sets forth that all formalities were satisfied
Constitutes prima facie evidence of the facts recited in the clause (i.e., that execution requirements have been satisfied)
what is testamentary capacity
for a will to be valid, the person executing the will must be 18 or older and have mental capacity (presumed to have)
- Age is determined at the time the will is executed
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Mental capacity — at the time of will execution, must understand:
1) Act — nature of his act (i.e., that he is executing a will);
2) Property — nature and extent of his property; and
3) People — persons who are the natural objects of his bounty
4) Nature of Disposition—how the above three factors relate and formulate a scheme of distribution
Rebuttable presumption exists that testator had mental capacity
Physical ailments, drug addiction do not raise a presumption of incapacity
what is testamentary intent
testator must intend that the instrument operates as his will
- Usually established by provisions in the will (e.g., “I, Testator X, hereby declare that this is my last will”)
- Present intent required — testator must have present testamentary intent (i.e., intent to make a will in the future is insufficient)
- Extrinsic evidence is allowed to prove requisite intent or lack thereof
what are the competency requirements for the witnesses attesting to the will
witnesses must be of sufficient maturity and mental capacity to understand and appreciate the nature of what they witness and attest to
I.e., witness could sufficiently testify in court if required
what happens when a witness to will being signed is also interested (stands to benefit)
Majority rule — will is valid but gift to witness-beneficiary is void; but there are exceptions - interested witness can still be a beneficiary where either:
- There were two other witnesses who were disinterested (i.e., three total witnesses, two of whom were disinterested), or
- Interested witness would take if there was no will (i.e., interested witness would have taken as a descendant through intestate succession)
UPC — presence of interested witness does not invalidate a will or any part of it
what’s a codicil and what are the contours/requirements for it
an amendment, modification, or alteration to a previously executed will
- Same formalities required — to be valid, a codicil must be executed with the same formalities required for the will itself (i.e., in writing, signed by testator, with sufficient witnesses)
- Effect — when a codicil is validly executed, the original will is treated as republished and deemed to have been executed on the date the codicil was executed
what is a holographic will and what are the requirements for it
Is an entirely handwritten will that is unattested (not recognized in all states)
Requirements — if it is potentially goingto be valid, a holographic will must:
- Be in testator’s handwriting — some states require the entire will to be in testator’s handwriting, while others allow typewritten text if the typed portion is not material
- Be signed — testator’s signature must be somewhere on the will
- Reflect testator’s intent to make a will — document must, as a whole, reflect that it is testator’s intent to make a will
(ex. testator requesting changes to his will isn’t good, this thing needs to be the will) - Replaces and revokes any prior valid will
what are integration issues with a will
Integration issues can arise where a part of a will becomes separated (e.g., pages of a multipage, stapled will become separated)
differs from “incorporation by reference” bc those things were never actually a part of will; this is like if lose page 74 out of 85
what’s the test to determine if a separate writing should be integrated as part of the will
Test — a document will be integrated into a will if:
1) Physical presence — the document was physically present at the time of the will’s execution; and
2) Intent of inclusion — testator intended the document to be part of the will
- can use extrinsic evidence to show, like witness testimony or other stuff
Requirements are presumed where there is a physical connection of pages (e.g., staple or paperclip) or when there is some internal coherence (i.e., pages comprise a complete, orderly disposition when combined)
what are acts of “independent significance” that a will could refer to
A will can dispose of property by reference to acts or events occurring after testator executes the will
- I.e., identification of a beneficiary or amount of a gift in a will may be determined by some future act or event
Valid as long as the act or event has some independent significance during testator’s lifetime other than providing a gift in her will
what is incorporation by reference into a will
where extrinsic documents are incorporated into a will because can show the requisite requirements
different from integration bc these were never actually a part of the will in the first place
what are the requirements to incorporate something into a will by reference
1) Intent to incorporate — the will manifests testator’s intent to incorporate the document;
2) Authenticated document — the will sufficiently describes the document such that it can be authenticated; and
- Description must be such that the document can be reasonably identified
- Document must correspond to the will’s description
3) In existence upon will execution — the document must be in existence at the time the will is executed
how does a testator revoke a will using a written instrument
A person who has testamentary capacity/intent to make a valid will can revoke a will any time before their death
Revocation by written instrument — a will or any part of it can be revoked or changed as long as there is:
- Intent — present intent to revoke; and
- Formalities — instrument revoking the will is made with the same formalities required for will execution
how does a testator revoke a will by physical act
A person who has testamentary capacity/intent to make a valid will can revoke a will any time before their death
Revocation by physical act — a will may be revoked in most states by burning, tearing, or otherwise destroying the will
- Present intent required — testator must intend to revoke at the time of the physical act
Act by another (revocation by proxy) — a person other than testator may revoke the will by physical act if done at testator’s direction and in testator’s presence
how does a testator partially revoke their will
A person who has testamentary capacity/intent to make a valid will can revoke a will any time before their death
revocation may be accomplished by making marks of cancellation on the will (e.g., crossing out provisions) in most states
- Where such marks are found on a will known to have last been in testator’s possession, a presumption is created that the marks were made by testator with the requisite intent to revoke
what’s the effect of a testator getting married after they’ve already executed a will (omitted spouse)
no effect on the existing will in most states (i.e., new spouse remains omitted)
Variation — under the UPC, where a person marries after executing a will and spouse survives testator, omitted spouse will take a share of decedent’s estate equivalent to what their intestate share would be
- Not applicable if will provides for the omitted spouse, was made in contemplation of marriage, or otherwise makes clear that the omission was intentional (that seems at odds with one of the last modules in the CMR)
what’s the effect of a testator getting divorced after they’ve already executed a will
revokes all bequests made in favor of the former spouse, unless the will expressly provides otherwise
Remainder of the will remains valid
Effect — will is treated as if the former spouse predeceased testator
what happens if a testator doesn’t provide for children born/adopted after the will was executed (pretermitted children)
Most states give the pretermitted child a share of testator’s estate equal to what they would have received through intestate succession
