Wills - Execution Req's Flashcards
Generally, the law in the jurisdiction of the decedent’s domicile at death governs
the disposition of his personal property, while the law in the jurisdiction in which the decedent’s real property is located governs the disposition of his real property.
However, a decedent may select which state law governs in the terms of his will.
Under the common law, wills are invalid if
they do not meet the specific requirements of the state.
However, some states will find a will is valid if the decedent substantially complied with the state’s requirements.
Harmless Error Rule.
Under the UPC, a will that is NOT properly executed will still be valid if the party seeking to have it validated proves by clear and convincing evidence that the decedent intended the writing to be his will.
A will is valid if the specific formalities provided by state law are met. Generally, these formalities require a valid will to be:
- In writing;
- Signed by the testator;
AND
- Signed by at least two witnesses.
If the testator is incapable of signing his will,
then he must have another sign his name in his presence and by his direction. Any mark intended to validate the will constitutes a valid signature.
The witnesses must
sign the will in the testator’s presence within a reasonable amount of time after witnessing the signing of the will.
Under the UPC, a valid notary can satisfy the dual-witness requirement.
Under the traditional view, a witness signs the will in the testator’s presence if she signs the will within the testator’s line of sight (e.g., cannot be in another room down the hall from the testator).
Under the modern view, a witness signs the will in the testator’s presence if she signs the will within the testator’s range of senses (e.g., may be in another room down the hall if the testator can still hear the witness).
Under the common law, the signing of the will MUST be witnessed
by two disinterested witnesses (individuals who do NOT receive any benefits under the will).
Virtually every state has abolished
the two disinterested W’s common law rule
Now, as to W’s, virtually ever state will allow
allow interested witnesses to validly witness the signing of a will.
In a minority of states, the interested witness forfeits his inheritance UNLESS two additional disinterested witnesses serve asvalid witnesses to the will.
Still, some states only allow interested witnesses to inherit their intestate share of the estate.
A holographic will is
a handwritten will that is NOT witnessed. Most states do NOT recognize holographic wills.
However in states that do recognize holographic wills, the holographic will is only valid if the testator signs it personally (no proxy signatures are permitted).
No precise words are required to make a holographic will valid; however, the will must contain operative words legally sufficient to validly devise the property.
