Wills Flashcards
Valid Will
- Written
- signed by the testator
- signed by 2 witnesses at the moment testator signed or during testator’s lifetime
- witnesses must know the document is a will
- must be present when the testator signs the will
If witness requirements are not met, the will can still be valid if there is clear and convincing evidence that the testator intended the document to be his will at the time he signed it.
Interested Witness
Witnesses should not be interested witnesses. An interested witness creates a rebuttable presumption that the witness got the will by duress, fraud or undue influence
Holographic Will
A will that is doesn’t comply with the requirements of a valid will. The will will still be considered valid if the holographic will has
- signature
- material terms in the testator’s handwriting
Capacity to make a will
When the will is created, the person must be at least 18 years old and of sound mind
A will will be invalid if
- Fraud
The testator is unaware he is signing a will or the will was forged by someone else - Duress
when a testator is forced to sign a will. - Undue Influence
beneficiaries influence the testator in creating a will and the testator falls victim to their influence
Integrated will
loose Papers are integrated into a will if they are present at the time the will is created and the testator intended them to be part of the will
Incorporation by reference
a writing outside the will may be incorporated into the will if
- referenced in the will
- existed at the time the will was created
- intent
Codicil
an amendment to a will. It must meet the same requirements as a will or holographic will. Revocation of a codicil still makes the will valid. But revocation of a will makes the codicils invalid.
Revocation of a will
A will is revoked by
- a subsequent will
a will is revoked if there is a second will created that expressly states the first will is revoked, if its implied, or if the two will arent consistent with each other
2.physical act
Testator burns, tears or destroys it with the intent to revoke the will. There is a presumption that a will is destroyed if the will cant be found at the time of the testator’s death
- by operation of law
because of an omitted spouse or child, or previous spouses after divorce or annulment
Omitted Spouse or Child
A omitted spouse or child will receive a share of the will if they were born or married after the will was created unless they were intentionally omitted.
Dependent Relative Revocation (DRR)
Cancels a revocation of a will based on a mistaken assumption of law or fact. But for the mistake, the testator would not have revoked his first will. The court will disregard the revocation made by the subsequent will and allow the first will to take effect.
Revival of a will
when a will is revoked by a physical act or a subsequent will, the first will can be revived if the testator intends for it to be revived. Extrinsic evidence is allowed.
Ademption
A gift is a will is no longer apart of the estate at the time of the testator’s death, the gift is void and the devisee takes nothing
Abatement
gifts in a will are sold so that the estate can pay all debts and creditors the estate cannot pay
Exoneration
When a property is given as a loan, and the will requires the encumbrance to be paid off so the devisee can take property free and clear of the mortgage
