Wills

Question 1

What is a Will?

Answer 1

▪ A written instrument that evidences testamentary intent

Question 2

Types of Wills

Answer 2

1) Attestate
2) Nuncupative
3) Holographic

Question 3

Attestate Will

Answer 3

• Written
• Witnessed
• Complies with formalities

Question 4

Nuncupative Will NY

Answer 4

Oral

Witnessed by 2 or more people

Question 5

Holographic Will NY

Answer 5

• Wholly handwritten

* Lacks witnesses

Question 6

Attesting means:

Answer 6

witnessing of the signature by other people

Question 7

Who may make wills of, and exercise testamentary powers of appointment over property?

Answer 7

▪ Every person 18 years of age or over, of sound mind and memory, may by will dispose of real and personal property…

Question 8

What property may be disposed of by will?

Answer 8

▪ Every estate in property may be devised or bequeathed

Question 9

Devise

Answer 9

disposition of real property

Question 10

Bequest

Answer 10

disposition of personal property

Question 11

NY Wills Formalities

Answer 11

• (1) in writing;
• (2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction; and

o (A) signed by at least two individuals, each of whom signed within a reasonable time after the individual witnessed either the signing of the will or the testator’s acknowledgement of that signature or acknowledgment of the will -

Question 12

NY Holographic and Nuncupative Will formalities

Valid and Invalid Rules

Answer 12

Valid if:

1) with armed forces
2) mariner at sea
3) accompanies armed forces

Invalid if:

1) Discharge
2) Expires 1 year after service
3) Expires after 3 years for mariners

Question 13

Purpose to Will Formalities

Answer 13

1) Evidentiary Function
2) Ritual Function
3) Protective Function
4) Channelling Function

Question 14

Strict Compliance

Answer 14

▪ False Positive – Court wrongly probates a will which was not intended to be a will
▪ False Negative – Court wrongly refuses probate to an instrument which was intended to be a will
▪ Under Strict Compliance  Must comply with the formalities strictly
▪ Balance
• Honoring testamentary intent v. Other problems that might arise if you do not strictly comply with the formalities

Question 15

Presence for Attestation

Answer 15

o What does it mean to be in the presence…
▪ They were in essentially the same room
▪ Requiring all eyes to be on the document when it is signed or when it is later acknowledged, we reduce the possibility that the terms have been changed

Question 16

Presence Tests:

Answer 16

1) Line of Sight

2) Conscious Presence Test

Question 17

Line of Sight Test

Answer 17

• Satisfied only if the testator is capable of seeing the witness in the act of signing
• Does not actually have to see the witnesses sign but must be able to see them were the testator to look

Question 18

Concious Presenece Test

Answer 18

• Witness is in the presence of the testator if the testator, through sight, hearing, or general consciousness of events, comprehends that the witness is in the act of signing

Question 19

Rules regarding Signature by Mark, with Assistance, or by Another

Answer 19

• A mark, cross, abbreviation, or nickname can be sufficient
• If the testator’s witness assisted him or her in signing their name, the signature would be valid if he or she intended to adopt the document as his or her will
• Must be at his direction and in his presence

Question 20

Location of the Signature

Answer 20

• Must be at the foot thereof (the bottom)

* This means at the bottom of what the testator wrote, not necessarily at the bottom of the paper

Question 21

Order of Signing

Answer 21

• In general, the testator must sign or acknowledge the will before the witnesses attest
• However, if they all sign as part of a single or continuous transaction, the exact order of signing is not critical

Question 22

Electronic Signature

Answer 22

• Signing your name by hand is better evidence
• The lack of such a signature may indicate that they did not intend this to be their will, or it may be consistent with a mark because they don’t have the ability to sign by hand

Question 23

Electronic Wills

Answer 23

• Does not comply with the formalities
• It is not signed and it is not in writing
• However, it may be allowed under substantial compliance rules

Question 24

Additions before/after Signature

Answer 24

• IF something is added below the signature, before the instrument was signed, we do not have subscription
o It was not signed at the foot thereof
• If an addition is made after signing, and below the signature, the will would be admitted to probate, but the line would be ineffective as a subsequent unexecuted codicil (it amends without replacing an earlier will)

Question 25

Video Wills

Answer 25

• Does not satisfy the writing requirement

o Could have been doctored

Question 26

Interested Witnesses

Answer 26

Man made a will which was attested to by two beneficiaries of the will and one other who did not receive anything through the will

Question 27

Types of Will Compliance/Executions by Court:

Answer 27

1) Strict Complince

2) Substantial Compliance

Question 28

Execution: Harmless Error

Answer 28

▪ Harmless Error is concerned with the intent
• That the writing was intended to be a will
• Whether the testator intended to make a will and whether they intended this instrument to be the will

Question 29

Harmless Error Standard of Review

Answer 29

o The burden is on the proponent of the will to establish by clear and convincing evidence that the decedent intended this to be his will

Question 30

Notarization of Holographic Will Standard

Answer 30

• A will that is just not witnessed
• (1) Handwritten by the testator’s hand
• (2) Signed by the testator
• (3) Need not be attested by witnesses

Question 31

Handwriting Requirement for Notarization of Holographic Will - NY

Answer 31

New York  Must be entirely in the handwriting of the testator

Question 32

Preprinted Will Forms

Answer 32

o Printed portions of a will can be incorporated into a holographic will where the court finds testamentary intent
o Best practice is to have it witnessed

Question 33

Revocation of Wills: Ways to Revoke

Answer 33

1) Subsequent Writing

2) Physical Acts

Question 34

Revocation of Will Through Subsequent Writing

Answer 34

o Will may be revoked by a subsequent writing that is inconsistent with an earlier writing
o Will may be revoked by a writing that expressly revokes an earlier will

Question 35

Revocation of Will Through Physical Act

Answer 35

o Tearing up the will, burning it, urinating on it, etc.

-To revoke by physical act, there also must be an intent to do so

Question 36

Mistaken Revocation Rules

Answer 36

▪ In the event that testator executes a valid will and then later revokes under a mistaken belief of fact or law that the subsequent instrument is valid
▪ If a testator undertakes to revoke his will upon a mistaken assumption of law or fact, under the doctrine of dependent relative revocation the revocation is ineffective if the testator would not have revoked the will but for the mistaken belief

Question 37

Divorce

Answer 37

▪ In most states, divorce revokes by operation of law any bequest made in the will to the former spouse
• Some jurisdictions require there be a divorce settlement
• Other jurisdictions only require there be a divorce
▪ There is a general presumption that divorce of former spouse revokes bequests made to the former spouse’s relatives as well
• This is a rebuttable presumption

Question 38

Can a valid codicil republish a will that was never executed?

Answer 38

• No – cannot republish something that was never published

* A valid codicil cannot republish a will that was never executed

Question 39

Incorporation by Reference

Answer 39

o Must have reference

o Must be in existence at the time of the execution of the will