Wills Essay misses

Question 1

Testamentary Intent

Answer 1

1. Intent = valid
2. “this is my last will = rebuttable presumption of intent
3. extrinsic evidence allowed to show intent

For a will to be valid the testator must intend that the particular instrument operate as his will.

“this is my last will” raises a rebuttable presumption of testamentary intent.

Generally, extrinsic evidence is admissible to show testamentary intent and, presumably, lack of testamentary intent.

Question 2

Will Revocation

Answer 2

A will may be effectively revoked by operation of law, by:

1. a subsequently written instrument, or
2. by physical act

Question 3

Will revocation by written instrument

Answer 3

There must be:

Intent to reovke + formalities

1. a present intent to revoke and
2. instrument must be executed with the same formalities as are required for the execution of a will.

Question 4

Will Revocation by Act

Answer 4

The statutes of each state specifically prescribe the acts sufficient to revoke a will. Generally, these acts are burning, tearing, or obliterating, or canceling a material portion of the will.

Common Law/most states: the act must be shown to have had an actual effect on the will or its language.

UPC: the words of cancellation must be on the will itself but need not touch any of the words of the will.

Question 5

Interested Witness Attestation

Answer 5

Most states: Purging statutes - will valid, interested gift void

Some states: no effect on will

Common Law no longer the rule

Most states have statutes have “purging statutes” that eliminate the interest rather than render the will invalid. The will is valid, but the gift to the witness-beneficiary is void.

Some states have repealed their “interested witness” statutes. In these states, the fact that a witness is also a beneficiary has no effect on the will whatsoever.

Question 6

Will Contract

Answer 6

Common Law: The contract to make a will does not need to be in writing unless land is involved

Some states: require all contracts to make a gift by will to be in writing.

UPC: a contract to make a will can be established only by:

1)PROVISIONS: provisions in the will stating the material provisions of the contract;
2) REFERENCE + EXTRINSIC EVID.: an express reference in a will to the contract and extrinsic evidence proving the terms of the contract; or
3) SIGNED WRITING: a writing signed by the decedent evidencing the contract.

Question 7

Cy Pres

Answer 7

1. If general charitable purpose impossible or impractical,
2. court may apply to another “as close as possible”

If it is impossible or impractical to use a gift for the general charitable intent indicated, the court may apply the gift to another purpose as close as possible to the original one rather than let the gift fail.