Wills Flashcards
What are the statutory formalities required in order to make a will?
Testator must be over 18.
Instrument must be executed with testamentary intent.
Testator must sign the will.
Two attesting witnesses who witness T’s signing.
What happens if a portion of the will follows the testator’s signature?
If clause was present at time of execution, some states say everything above the signature is valid, everything below is invalid. The UPC and majority view is that no specific place on will where signature must be.
If clause was added after execution, the will is valid, but the addition is not.
Is a holographic will admissible to probate?
In about half the states, holographic wills not allowed. Not entitled to probate unless two witnesses.
In UPC and some other states, if material provisions are in T’s own handwriting and it is signed by him, then allowed. Material provisions are those identifying property and beneficiaries.
Two tests governing witnesses of wills
Conscious presence test (majority): In presence if conscious where each other is and what each other is doing.
Scope of vision test (minority): In presence only if they can see each other sign were they to look. Can be no visual impediments.
Does the UPC have a presence requirement for witnesses of a will?
No
What of interested witnesses?
Majority rule: Interested witness situation does not result in denial of probate of will, but beneficiary-witness loses legacy unless: (1) there were two disinterested attesting witnesses; or (2) witness-beneficiary would be an heir if there were no will, in which case the I/W gets the lesser of amount given in will or intestate share.
UPC/Modern trend: Interested witness rule abolished.
Self-proved wills
At time will is signed by T and attesting witnesses, T and witnesses sign self-proving affidavit under oath before notary public. Affidavit recites all elements of due execution. Formalities of execution are conclusively presumed.
What does revocation by physical act require?
(i) Intent to revoke, (ii) physical act (burned, torn, canceled, obliterated, or destroyed)
An act of revocation on one executed copy revokes all executed copies.
What if VOID is written on the back of the will?
Most states – no revocation. Cancellation must cross some of the language of the will.
UPC – will is cancelled b/c act of revocation can occur anywhere on the will.
Revocation by proxy requires what?
Must be (i) at T’s direction, and (ii) in T’s presence.
What does a lost wills statute require?
If a will is lost or destroyed (and the presumption that the testator revoked it is overcome), it may be admitted to probate if the following can be proven: (i) valid execution, (ii) the cause of nonproduction (i.e. proof that the will was not revoked); and (iii) the contents of the will. The contents are usually proved by the testimony of at least two witnesses, or by production of a carbon or photocopy of the will.
What happens when a codicil does not expressly revoke an earlier will, but is inconsistent with it?
Where codicil makes no reference to will but contains slightly inconsistent provisions, to the extent possible the will and codicil are read together. But to the extent of any inconsistent provisions, the later document controls and thereby revokes by inconsistency the prior will.
What is the effect of divorce on a will devising assets to the divorced spouse?
UPC and most states: Divorce following a will revokes all provisions in favor of the ex-spouse; construe the will as if ex-spouse were dead.
If T and ex-spouse remarry, ex-spouse is back in the will.
Mere separation does not affect rights under a will, except when there is a separation with a complete property settlement, then treated as a waiver and we would then construe the will as if ex-spouse were dead.
When can interlineation be given effect (i.e. scratching out $10,000 and writing in $15,000 in a bequest)?
It cannot be given effect, unless after the change, T re-executes it, or T republishes the will by codicil.
What does DRR do?
Dependent Relative Revocation – DRR allows us to disregard a revocation which is based on, induced by, premised on a mistake of law or fact if the court is satisfied that, but for the mistake, T never would have made the revocation.
When does a prior will become revived?
Most states: once the prior will is revoked, the only way to get it back is by re-executing it or republishing it by codicil.
UPC and some other states: Prior will doesn’t automatically revive. Prior will is revived by revocation of subsequent will if: (1) Prior will still exists, (2) T wanted it revived, and (3) Subsequent will was destroyed by physical act.
How can an extrinsic document be incorporated by reference?
(i) Writing must be in existence at time will was executed;
(ii) Will must manifest an intent to incorporate the document;
(iii) Will must describe the writing sufficiently to permit its identification
Note: where recognized, holographic wills can incorporate non-handwritten material by reference.
What is the exception to the rule requiring an extrinsic document to be in existence at the time of the will in order for it to be incorporated by reference?
Statutory exception found in UPC and many states: Will may refer to written statement or list that disposes of tangible personal property (other than money) not specifically disposed of by the will. The list must be signed by T and must describe the property with reasonable certainty. May be written before or after will executed; may be altered at any time.
When does a gift lapse?
When beneficiary named in a will dies before (or within 120 hours of) the testator, the gift lapses - the fit fails, falls to the residue, and passes as part of the residuary estate.
When does anti-lapse apply?
UPC statute applies when predeceasing beneficiary is T’s grandparent or a lineal descendent thereof who leaves issue surviving T.
What is the class gift rule?
When there is a gift by will to a group of persons generically described as a class and some class member predeceases the testator and the lapse statute does not apply, the surviving class members take.
