Wills - Execution of Wills Flashcards
What are the Requirement for a Validly Executed Will?
T must be 18 Years Old plus
(1) Signed by testator (or someone at T’s direction and in her conscious presence - proxy signature)
(2) Two Attesting Witnesses (no age requirement, but must be generally competent)
(3) Each witness must witness (i) testator’s signing of the will; (ii) testator’s acknowledgement of her earlier signature, OR (iii) testator’s acknowledge of the will.
Codicil (later amendments) must be executed with same formalties)
MA Does not Require
T to sign “at the foot or end of the will”
W to know they are witnessing a will being signed (as opposed to some other legal documet)
W to signed in each other’s presence.
W to sign in the testator’s presence.
What are the three ways to prove due execution of a will if the attesting witnesses are unavailable?
(1) Informal probate [used in harmonious situation where no contest likely]
After seven days’ written notice to heirs/devisees, a court or magistrate proceeding is held and admits the will to probate without further proof IF the will appears to have been validly executed.
(2) Formal Testacy Proceeding - If contested testimony from one attesting W required. However, can be proved by “other evidence.
(3) Self-Proving Affidavit. Testimony of the attesting W is secured at the time the will is executed. [One or two step process] Serves same function as a deposition or interrogatory.
What happens when a beneficiary (or a beneficiary’s spouse) is an attesting witness to the will? [Interested witness statute]
Interested witness situation NEVER AFFECTS VALIDITY OF THE WILL, but the bequest may be void.
MA: A bequest to an attesting witness or the W’s spouse is VOID unless
(1) there were two disinterested attesting witnessed (supernumeracy rule) OR
(2) the interested witness establishes that the bequest was NOT INSERTED, and will was not signed, as a result of fraud or undue influence by the W. [Bares the BoP]
Does MA recognize “holographic wills”?
Holographic wills = Wills that are in testator’s handwriting and signed, but not witnessed.
MA does not recognize holographic wills. All must be in writing, signed by T and two W’s.
Would be valid in a majority of states if in T’s handwriting and signed by T.
What is the Uniform Execution of Foreign Wills Act?
A will executed in another state is admissible to probate in MA if executed in accordance with:
(1) MA law
(2) Execution law of place where the will was executed
(3) Domicile law - law where T was domiciled at signing or death.
Thus, a holographic will could recognied if written in another state.
What is a conditional will?
A will that is established based on a condition occuring (i.e. dying on this trip)?
Does it apply if it apply if the condition does not occur or does it show “motive or inducement for making a will”?
ARGUE BOTH WAYS
