Wills and their creation Flashcards
Will
A written document by which an individidual sets out their wishes to dispersion of probate property at death and appoints a fuduciary (executor or personal rep.) to oversee the probate process
3 requirements for a valid will
- Testamentary intent
- testamentary mental capacity
- formalities
testamentary intent
the document is intended to be a will
3 key formalities
- A written document
- the decedents signature
- witnessing (attestation)
What in the last months of the decedent can help prove testamentary intent
Their actions
Testamentary capacity
Refers to the testators ability to “be capable of knowing and understanding in a general way”
A typical definition of testamentary capacity requires that the testator know what 4 things
- The nature and extent of his or her property
- The natural objects of his or her bounty
- The disposition that he or she is making of that property
AND - Must be capable of understanding how these elements relate
All that is needed for capacity when making a will:
A lucid moment
Lucid moment
A bried time when the testator has the requisite capacity even if she appears to not have it most of the time.
You can be lacking mental and physical capacities when writing you will, as long as
they have a decided and rational desire to the disposition of his property
Testamentary capacity age requirement
Must be 18 years or older to execute a valid will, unless you are an empancipated minor
Empancipated Minor
Children who are deemed by the court as free from parental control and no longer the financial responsibility
Age requirement on emanicpated minors on making a will
The age requirement is removed
UPC test for someone signing the will that is not the testator: what test do you use?
The “concious presence” test
The conscious presence test eliminates the need for
the witnesses to sign in the presence of the testator
“Conscious Presence”
The testator is aware of the act of the signing, even if the person who is signing is not visable at the very moment the signing is performed
The conscious presence test is satisfied when the
witnesses are so near at hand that they are within any of the testators senses, so that he knows what is going on
Witnesses by signing the will is attesting that
the will is the testators, they saw the testator sign the will, or acknowledging the signature of the will
To testify about a will’s execution, the witness must be
competent
competancy and interested witnesses
an interested witness is not competent
Interested witness
an individual who is identified as a beneficiaryor nominated to serce as a fiduciary to the terms of the will
problems with interested witness testimony
may not be impartial and independant
If a state requires a disinterested witness and a witness is interested, what happens
The interested witness can still receive at least a portion of the nomination
What decides if a witness has to be disinterested
The state
If they are a supernumary witness, what can a interested witness get
May receive a full testamentary gift or acceptable gift
Supernumerary witness
A extra witness after the 2 required disinterested witnesses
How many witnesses do a state require to testify about will execution
2
What satire can allow an interested witness receive all or a portion of a gift
Purging statute
Purging Statute
Removes or purges the testamentary gift that a interested witness would recieve under the terms of the will
The effect on the interested parties status with a purging statute
If they lose their interes, the witness no longer has interest in the will and can testify impartially to the events of the will execution
What it is called when a purging statute only removes part of the testamentary gift
the interested parties “extra benefit”
Purging statute
Extra benefit
Referred to a testamentary gift in excess of what the interested witness would have recieved if the decedent had died intestate
When a purging statute only takes away the extra benefit of a interested witness how much can they recieve
Can recieve up to his or her intestate share
Purging statutes that remove the extra benefit from interested witnesses, allows who to recieve a testamentary gift
the interested witness, only if they are a intestate heir
4 functions of formalities
- Protective
- Cautioning or ritual
- Evidentiary
- Channeling
Function of Formalities
Protective Function
helps testators potential valunrability.
- By asking the testator during the ceremony if they know they are signing their will.
Function of Formalities
Cautioning or Ritual Function
Impressing upon the testator the seriousness of the occasion and that her actions and statements will have important consequences
Function of Formalities
Evidentiary Function
Creates a record of the free will and intent of the testator to which witnesses can testify
Function of Formalities
Channeling function
Puts the testators wishes into standardized forms and testamentary language which are immediately recognizable and understandable to professionals
Traditional rule for witnesses witnessing the will
Line of vision test: the testatoe must be capable of seeing the witness sign the will.
UPC recognizes wills that are not witnessed but ____ as valid
notorized
Holographic Wills
handwritten wills signed and dated by the testator
How holographic wills are useful
they are useful in allowing testors to express their final wishes in extreme circumstances, when unexpected incidences occur, and the context of military service.
Formalities of a online preprinted form/will and what formality people struggle with
- same formalities of a will
- Typically fail to get them witnessed
Holographic wills and online preprinted forms/wills show what prefrence in the law?
Testancy over intestancy
The unform electronic wills act:
A electronic will must be:
a record that is readable as text at the time of signing
The unform electronic wills act:
How an electronic will must be signed
signed by the testator or another intheir physical presence by their direction
The unform electronic wills act:
How a electronic will must be witnessed
- Signed by two individuals (who are residents and physically located in the state) within a reasonable time of signing
OR - Acknowledged by a notery
The unform electronic wills act:
What the witnesses of a electronic will is testifying to:
- Witness: the signing of the electronic will or the testators acknowledgement of the signing of the will
- Notery: Acknowledging the testator before and in the physcial presence of signing
The unform electronic wills act:
How the intent of the testator is established
can look at extrinsic evidence
The unform electronic wills act:
Electronic wills: audio and video
has to be in text, does not count unless it is transcribed prior to the testators signature.
2 doctrines that allow the probate of wills that do not strictly meet the formality requirements
- Substantial compliance doctrine
- Harmless error
Substantial compliance doctrine
allows a non-conforming will to be admitted to probate not withstanding certain defects in execution
The substantial compliance needs
clear and convincing evidence that the purposes of the will formalities have been satisfied
Harmless error doctrine
Allows a nonconforming will to be admitted to probate if there is clear and convincing evidence that the decedent intended the document to be their will
UPC Harmless Error Doctrine: Need clear and convincing evidence that the decedent intended the documents or writings to constitute:
- The decedents will,
- partial or complete revocation of the will,
- an addition to or an alteration of the will, or
- a partial or complete revival od his formally revoked will or of a portion of the will
The Uniform Electronic will Act: Harmless Error Doctrine: Need clear and convincing evidence that the decedent intended the record to be:
- The decedents will,
- partial or complete revocation of the will,
- an addition to or an alteration of the will, or
- a partial or complete revival od his formally revoked will or of a portion of the will
Acts of Independant Significance
events that occur in everyday life, can change how a will is interpreted
Events of Independant Significance
A will may be explained by such evidence:
1) as to the person intended
2) The thing intended
3) The intention of the testator to each
UPC 512 Events of Independant Significance
A will may dispose of property by
refrence to acts and events that have significance apart from their effect upon the dispositions made by the will
UPC 512 Events of Independant Significance
Timing
can occur before or after the execution of the will
or
before or after the testators death
UPC 512 Events of Independant Significance
Execution or revocation of another individuals will
Can dispose of property by refrence to acts and events that has significance apart from the dispositions made by the will
3 basic req’s for a valid will
- Testamentary capacity
- compliance with formalities
- no illicit interference with donative intent
Plain meaning doctrine
does not look outside the plain meaning of the words on the page to find testators intent
only look to extrinsic evidence if language is unclear.
The word “heirs” does not prevent
one individual from taking the entire gift
intent of the testator
testimony may be employed to resolve
contradictory provisions in the will
testators intent
direct evidence of the testators intention should be considered
only if the ambiguity or contradiction persists
intent of testor
extrensic evidence is to be used to determine
What the testator meant by the words used in the instrument
Equivocation
where several people or objects fit a discription in hte will
misdiscription
where no person or object fits the description in the will
UPC 805 Reformation to Correct Mistake
The court may reform the terms of a governing intrument, even if ambiguous, to
conform to the trannsforor’s (ex. attourney writing the will) intention if it is proved by clear and convincing evidence
1) what the transforor’s intention was
AND
2) That the terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inducement
UPC 805 Reformation to Correct Mistake
court may reform the terms of the instument to conform to the transforors intention if it is proved by clear and convicing evidence:
1) what the transforor’s intention was
AND
2) That the terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inducement
Will checklist
- will is valid (testamentary intent, capacity, execution formalities)
- no challenges
- interpret will provisions
when the language of the will is susptible to more then one meaning
use extrisic evidence
