Wills & Estate

Question 1

Is a contract to make a will enforceable?

Answer 1

Yes – A contract to make a will must be (1) certain and definite in its terms, (2) based on valuable consideration, (3) the proof must be clear and convincing, and (4) comply with the statute of frauds (written and signed).

Valid contracts will supersede valid wills on any terms where they conflict.

Question 2

What is the default remedy for enforcement of real property contracts?

Answer 2

Specific Performance

Question 3

When is a will entitled to probate?

Answer 3

A will is entitled to probate when duly executed–signed in the presence of two competent witnesses who sign/subscribe the will in the presence of the testator.

Question 4

Must a will include a self-proving affidavit to be entitled to probate?

Answer 4

A will does not require a self-proving affidavit to be entitled to probate, but for it to be admitted to probate, the subscribing witnesses must testify in court.

Question 5

If a child is born after a will is executed, what is the effect?

Answer 5

A child born after a will is executed is a pretermitted heir. When a pretermitted heir exists, the estate is distributed under intestacy laws despite the existence of a will.

Question 6

Can a bequest by an unattested document be valid? (e.g., the will states, “I give property to those specified in a separate list.”)

Answer 6

Yes – A bequest through an unattested document is valid if it meets the requirements to be incorporated into a will by reference.

The unattested document is given effect to the extent that it describes with reasonable certainty (1) items of tangible personal property, (2) their recipients, and (3) is signed by the testator.

Since the unattested document must specifically bequeath, a bequest of a general or residuary nature will not be effective.