Wills Flashcards
Will
Definition
Legally enforceable declaration of how a person wishes his or her property to be distributed after death.
An instrument that has any operative effect during the maker’s lifetime cannot be a will.
Valid Will Elements
(1) Must be in Writing
(2) Be signed by the Testator
AND
(3) be attested by 2 credible witnesses who signed in the testator’s presence
Most States - required 2 witnesses
UPC
Physically Unable to Sign
Allows testator’s signature to be made by another in the testator’s conscious presence and at the testator’s direction.
Interested Witness Rule
Common Law
An interested witness was not a competent witness & barred from testifying as to the will’s execution, and caused the will to be denied probate.
Interested Witness
Definition
Attesting witness who was also a beneficiary under the will
Interested Witness Rule
UPC
Statutes in Non-UPC States
abolished the Interested Witness Rule
Alabama
UPC
Non-UPC States
Fact that a witness is a beneficiary has no effect on the will
Purging Statutes
Many Other States
Changed the CL interested witness rule
Provides that the will is valid, but the interested witness loses his gift, with 2 exceptions:
(1) The gift to the witness will not be stricken if the witness is supernumerary (if there are enough disinterested witness in addition to the interested one)
(2) A witness would have taken a share of the decedent’s estate if the will were not admitted to probate and takes the lesser of the legacy or the gift he would have received if the will were denied probate. (Will not admitted to probate = the beneficiary would have been an intestate heir if there were no will or if the beneficiary was also given a bequest in an earlier will that he did not witness.)
