Wills-Execution-DWB

Question 1

Attested Will

Generally

Answer 1

A valid Attested Will must be:

• in writing,
• signed, and
• witnessed.

Specific requirements vary by jurisdiction.

Question 2

Holographic Will

Answer 2

A Holographic Will is an unwitnissed will.

Only about half of states adknowledge.

CA & UPC: Signature & material provisions must be in T’s handwriting, intent may be part of form or hand written

Some Jurisdictions also require statement of intent or whole document to be in T’s handwriting.

Question 3

Codicil

Answer 3

A Codicil is a will which amends a previous will without revoking it entirely.

Execution of a codicil reexecutes, republishes, and re-dates the underlying will, which can cure defects in the underlying will, e.g. interested witness, undue influence.

If underlying will is not valid, the codicil becomes a freestanding will.

Question 4

Devices which increase the scope of a will

Answer 4

• Integration
• Republication by codicil
• Incorporation by reference
• Facts of independent significance

Question 5

Integration

Answer 5

Verbatim: Under the doctrine of integration, those pieces of paper which are physically present at the time of execution and that the testator intends to be part of the will constitute the pages of the will.

Question 6

Republication by Codicil

Answer 6

Execution of a codicil has the effect of re-executing, republishing and re-dating the underlying will.

Question 7

Incorporation by Reference

Answer 7

A document not executed with Wills Act formalities may be given effect along with a will if: the document was in existence at the time the will was executed, the will expresses an intent to incorporate the document, and the will adequately identifies the document.

Question 8

Facts of Independent Significance

Answer 8

A will may refer to a fact or event that is to occur outside of the will, the fact or event may contol either who takes under the will or how much a beneficiary takes.

The fact or event must have significance independent of its effect upon the will.

Question 9

Will Revocation

Answer 9

A will may be revoked by:

• subsequent will: valid attested or holographic
• act: destructive toward will, with intent to revoke, including non-will writing on will by testator
• presumption: if will cannot be found, revocation by act presumed
• operation of law: marriage, divorce, etc.

Question 10

Revocation of

Subsequent Will

Answer 10

T executes W2, revoking W1. T thereafter revokes W2.

Traditional Approach: W2 revoked W1. W1 must be re-executed.

CA & Modern Majority: W2 revoked by W3: W1 revoked except as provided in W3.

CA & Modern Majority: W2 revoked by Act: W1 revoked except as evidenced by circumstances and declarations.

Question 11

Attested Will

California

Answer 11

• In California, a will must be in writing,
• signed by the testator, or another in T’s name, at T’s direction, in T’s presence, or by a conservator with a court order
• signed, during T’s lifetime, by two witnesses who,
• together at the same time,
• witnessed T’ sign the will or acknowledge the signature or will, and
• undestand that they are signing T’s will.

Question 12

Judicial Approaches to will Requirements

Answer 12

Absolute Strict Compliance**: must comply exactly. **CL and Majority

Substantial Compliance: Court may probate will if there is clear and convincing evidence that: 1) the testator intended the document to constitute their will, and 2) the Wills Act requirements were substantially met.

Harmless Error: Only need C&CE of testator intent. i.e. first half of Substantial Compliance. UPC, CA (for witness req.)

Question 13

“Witnissed”

Interpretations

Answer 13

Line of sight

Traditionally a witness must see or have the opportunity of seeing the tesator sign and the testator must see or have the opportunity of seeing the witness sign the will.

Conscious Presence Test

Modernly, it is commonly acceptable for the witness to be able to tell from sight sound and general awareness that the required act is being performed.

Question 14

Delayed Attestation

Answer 14

California: Witnesses must sign during T’s lifetime

UPC: Witnessess must sign within a reasonable time of witnessing execution, even after T’s death

Traditional: Witnisses must sign at the execution, in presence of T

Question 15

Attestation Clause

Answer 15

Attestation Clauses, or self-proving affidavits, create a rebuttabe presumption that the will was properly executed.

This is done to facilitate the probate process by eliminating the need to call witnesses court prior to probate.

Attestation Clauses are common but not required.

Question 16

Interested Witness

Answer 16

An interested witness is a witness who has a financial interest in a will.

• CL: Invalidate Will
• Minority: Void interested party gift
• CA, Majority: Void interested party gift in excess of intestate share
• UPC: No separate remedy, claim undue influence or fraud

Question 17

Swapped Wills

Answer 17

Husband and Wife sign each other’s wills instead of their own.

• Traditional CL: Will invalid
• California, Modern Trend: Will valid if Testator intended the will to constitute their will.

Question 18

Conditional Wills

Answer 18

Conditional wills are wills which are only given effect if certain conditions are met.

Valid, but provisions are narrowly construed as much as possible as explanations rather than conditions.

Contrast with Facts of independent significance, which affect provisions within a will.

Question 19

Nuncupative Will

Oral Will

Answer 19

Nuncupative wills are made under peril of death.

Oral wills are not written.

Example: common scenario is soldier in battle telling friends what to do with his stuff as he lay dying.

Not generally recognized. Even where recognized, not very viable due to numerous requirements.

Question 20

Revocation by

Subsequent Will

Answer 20

Verbatim: A will or any part thereof is revoked by a subsequent will which revokes the prior will or part expressly or by inconsistency.

Question 21

Revocation by

Act

Answer 21

CA Rule: “A will or any part theref is revoked by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either the testator or another person in the testator’s presence and by the testtor’s direction.”

Note: Lines or VOID count. Destroying one duplicate revokes all duplicates.

Variations: Testator must perform act, no partial revocation, lines/markings don’t count.

Question 22

Revocation by Presumption

Answer 22

CA Rule: If the testator’s will was last in the testator’s possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator’s dath, it is presumed that the testator destroyed the will with intent to revoke it.

Variations: Missing testator copy revokes all duplicates.

Factors affecting burden of proof: degree of decedent control, accessability to beneficiaries,

Question 23

DRR

Dependent Relative Revocation

Answer 23

Even if a will or part thereof is validly revoked, courts will ignore the revocation if: 1) the revocation was based on a mistake, AND, 2) testator would not have revoked if they had known the truth.

Generally, this is only used where: 1) there is a failed alternative testamentary scheme, OR 2) the mistake is set forth in the revoking document and is beyond the testator’s knowledge.

Common Example: T revokes W1 by act, believing W2 was validly executed.

Question 24

Revocation

by

Operation of Law

Answer 24

CA Rule: Divorce automatically revokes all provisions in a testator’s will in favor of the ex-spouse. Applies to domestic partnerships. Revived if remarried to same spouse.

UPC/Majority: revocation is irrevocable.

Variation: Spouse’s family also disinherited.

Question 25

Contracts

Concerning

Wills

Answer 25

A valid contract to make or not to revoke a will requires an offer, acceptance, and consideration.

Writing requirement determined by statute of frauds.

• Remedy: Constructive trust
• NOT specific performance
• Executed will still probated

Note: UPC, CA, and Majority: joint or mutual wills DO NOT create a presumption of a contract not to revoke.

Question 26

Contracts

Concerning Wills

California

Answer 26

• Provision in a will stating material provisions of contract
• Express reference in a will
• Writing signed by decedent
• C&CE of an agreement between decedent and claimant or another person for benefit of claimant
  *

Question 27

Order of Takers

Answer 27

1) Creditors
2) Spousal Protection
3) Beneficiaries

Question 28

Contract not to Revoke

Remarriage

Answer 28

Majority: enforce terms of contract, allow beneficiaries to take before new spouse’s spousal protections.

Minority: does not enforce because enforcement discourages or restrains the right to marry.

Question 29

Valid Signature

Answer 29

Any completed marking intended by the testator to be their signature qualifies. Singatures stopped of testators own volition qualify, but interrupted signatures which are not later completed do not qualify

Question 30

Lost Will Doctrine

Answer 30

Under the lost will doctrine, where a will is lost but not presumed to have been revoked, extrinsic evidence is admissible to prove the provisions of the will.

Question 31

Partial Revocation by Act

Answer 31

Majority: Revoked gift passes to residuary clause.

Minority: Revoked gift passes through intestacy.