Wills Act Formalities Flashcards
2-502 Execution
Writing Signed by Testator
a. Need not sign at the end
b. Signing may be mark, cross, abbreviation, or nickanme as long as intended to be signature
c. Signed by another: must be in the testator’s conscious presence and at the testator’s direction 2-502(a)(2)
d. Conscious presence test: if testator, through sight, hearing, or general consciousness of events, comprehends that the witness is in the act of signing
e. Acknowledgement: May acknowledge either his or her signature or the will, which may be inferred from the testator’s conduct. 2-502(a)(3)
f. No requirement that it be dated
2-502 Attestation
a. Two witnesses
b. Separate witnesses: does not require the witnesses to be present at the same time for any reason, even when the testator signs or acknowledges UPC § 502(a)(3).
c. Order isn’t critical if contemporaneous transaction R3d Property
d. Delayed attestation: Witnesses need to sign within a reasonable time after witnessing the testator sign or acknowledge, can be after the teator’s death under harmless error. UPC § 502(a)(3).
i. Witnesses should sign the will while their recollection of the execution ceremony is still fresh enough that they can remember whether the execution ceremony was valid. A general recollection that they thought it was valid, arguably, is sufficient.
e. Allows notarization in place of witnesses.
f. Signing by interested witnesses does not invalidate the will. 2-505.
2-502 Holographic Will
a. Only material provisions need to be handwritten, not the entire instrument
b. Must be signed
c. Intent: intent can be derived from the handwritten material, the non-handwritten portions, or other extrinsic evidence. 2-502(c)
2-505(b) Interested Witness
Signing by interested witnesses does not invalidate the will
2-504 Self-Proving Affidavit
Allows a will to be admitted to probate without the testimony of witnesses; UPC authorizes a combined attestation clause and self-proving affidavit
2-503 Harmless Error
Court is empowered to probate the will if clear and convincing evidence shows that the decedent intended the document to constitute his or her last will and testament
