Wills - Execution Requirements Flashcards
Executing a Will
(1) It must be in writing
(2) Testator (at least 18 years old) must sign will
(3) 2 witnesses
(4) Testator intends document to be the will
Substantial compliance rule: Some states allow a will to be valid if a substantial compliance with the requirements of executing a will have been fulfilled.
Holographic will: Unwitnessed wills. Holographic wills must be signed and material portions in testator’s handwriting.
Interested witnesses
Codicils
A codicil is a supplement to a will that modifies it, adds to it, explains it, or revokes it.
A codicil must generally be executed in the same manner as a will.
To the extent that the codicil is inconsistent with the will, the codicil will control.
Incorporation by reference
Contractual wills
Ordinarily, contracts to make a will must be in writing. Otherwise, the contract is unenforceable. (Some jurisdictions use the Statute of Frauds to reach the same result.)
UPC approach: a joint will does not by itself establish the existence of a contract between two testators to dispose of their property in a certain way. Rather, a contract to make a will may be established only by
(1) provisions of a will stating material portions of the contract,
(2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract, or
(3) a writing signed by the decedent evidencing the contract.
Conditional wills
If a testator intended that the will be valid only upon the happening of a condition precedent, the will is operative only if the testator fails to return or survive.
In determining whether a will is conditional/ contingent, a court must first decide whether the possibility referred to is a condition . . . to the operation of the will, or whether the possibility of the happening was only a statement of the motive or inducement which led to the preparation and execution of the instrument.
