Wills Formalities Flashcards
Requirements of a Valid Will
- Legal Capacity. TPC 251.001
- Age 18 or older,
- Currently or previously married, or
- Current member of the armed forces of the U.S.
- Testamentary Capacity (“of sound mind”)
- Sufficient mental ability to understand:
- Extent and scope of the testator’s property (the what)
- Natural objects of testator’s bounty (the who)
- Effect of legal act of disposition (the purpose)
- Relate all above elements together at same time.
- Sufficient mental ability to understand:
- Testamentary Intent
- Formalities (attested wills under TPC 251.051 and holographic wills under TPC 251.052)
Types of Wills
Attested Wills, Notarized Wills, and Holographic Wills
Attested Wills - Core Formalities
- Writing
- Signature
-
Attestation by witnesses
- Number varies by state (UPC and Texas require 2)
Attestation - Witnesses Witnessing in Each Other’s Presence?
- Majority
- Minority
- Majority - Most states DO NOT require the witnesses to be together either
- (1) when the testator signs or acknowledges the will, or
- (2) when the witnesses attest to the will.
- Minority - The 1837 Wills Act required the witnesses to be present at the same time when the testator signed or acknowledged the will. (Minority Rule)
Attestation - Majority, UPC and Texas Rules
- Majority Rule – each witness must sign the will in the testator’s presence (designed to prevent fraud).
- Conscious Presence (majority) - a witness is in the presence of the testator if the testator, through sight, hearing, or general consciousness of events, comprehends that the witness is in the act of signing.
- Line of Sight (minority) – witnesses and testators have to be within each other’s line of sight to be in eachother’s presence (unless blind).
- UPC 2-502(a) – the witnesses must within a reasonable time after seeing testator sign or acknowledge his earlier signature.
- They don’t have to sign during the testator’s lifetime, but they have to sign it within a reasonable time
- Texas – Unlike many states, Texas law does not require the witnesses to attest in each other’s presence or the testator to sign the will in the presence of the witnesses, so long as the execution and attestation of a will occurs at the same time and place and forms part of one transaction (aka “continuous transaction view”).
Attestation Clause (UPC)
A clause that recites that the will was duly executed in accordance with the applicable wills act.
- UPC 3-406(3) – attestation clause not required, but creates a rebuttable presumption of a valid execution.
Self Proving Affidavit
- Definition
- Methods
- Legal Effect
- Self-Proving Affidavit – instead of the testator putting an attestation clause in the will, the witness can sign a self-proving affidavit—a sworn declaration under oath that the will was duly executed.
- UPC 2-504 – Two Methods of Self Proving Affidavits –
- One Step - Combined attestation clause pus self-proving affidavit.
- Two Step (Most States) -
- attestation clause with will.
- Then notarize SPA separately.
- Legal Effect –
- UPC 3-406(1) – if a witness is self-proved, questions of due execution are not contestable except with evidence of fraud, or forgery of the acknowledgment or affidavit.
- Other States – may only give rise to rebuttable presumption of due execution.
- Texas - A validly executed self-proved will may be admitted to probate without the testimony of any subscribing witnesses.
Signature Requirement
- General Rule
- Order of Signing
- Subscription
- Delayed Attestation (UPC)
- General Rule – in all states, and UPC 2-502(a), testator is required to sign the will.
- Full name is preferable, but a mark (such as initials or abbreviation) intended as a signature is sufficient.
- Order of Signing – generally testator needs to sign or acknowledge before witnesses sign.
- Subscription – a minority of states require the signature at the end of the document.
- Delayed Attestation – under UPC 2-502(a)(3)(A), witness must attest to the will within a reasonable time (which could even be after the testator’s death).
Is the Testator Required to Identify the Date and Executor in Will?
General Rule - wills generally are not invalid for failure to identify the date of its making or the executor of the estate.
Interested Witnesses and Purging Statutes -
- Majority/Texas Rule
- Minority/UPC
- Majority/Texas Rule on Purging– an interested witness forfeits their devise in excess of what they would have received through intestacy if they testify in probate court.
- Only applies to a witness who is necessary to confirm a will’s validity.
- Supernumerary Exception - If the will is witnessed by enough disinterested people (Texas requires one other disinterested witness), the interested witness is supernumerary and may take his full devise.
- Doesn’t have to be an attesting witness on the will itself (e.g., could be the attorney who attended the will signing).
- UPC/Minority - no requirement that any of the witnesses be disinterested; an interested witness is not purged of his devise.
Interested Witnesses and Purging Statutes - Minority/UPC Rule
a large minority of states, and the UPC 2-505(b), do not require any probate witness to be disinterested and do not purge an interested witness of their devise.
Safeguarding a Will
- Lawyers should generally refrain from keeping a client’s will unless the client asks them to.
- Many states and UPC 2-515 provide for deposit of a will with local probate court clerk.
- But most people don’t know about this and there is no national registry.
Substantial Compliance Doctrine
The court may deem a defectively executed will as being in accord with statutory formalities if there is clear and convincing evidence that the purposes of those formalities were served.
- Majority of states do not follow, or have stricter variations of it.
Harmless Error Rule Under UPC
UPC 2-503 –The court may excuse noncompliance if there is clear and convincing evidence that the decedent intended the document to be his will, a partial or complete revocation of a will, an addition or alteration to a will, or partial or complete revival of their formerly revoked will.
- UPC 2-503 and 11 States follow (but not Texas)
- not enough that testator had intent to change will. Has to intend that specific document be the revised/substitute will.
Does a Will Need to be on Paper?
- A will need not be on paper.
- All that is required is that the will be in the form of a reasonably permanent record.
- Example - courts have found that will written on galaxy tablet with stylus was testator’s will.
Notarized Wills
Notarized Wills - Notarized wills are valid in only two states:
- Colorado
- North Dakota
Holographic Wills -
- General Rule
- Attestation?
- Who Follows?
- Effect?
Holographic Will – For a holographic will to be valid, it must be in writing, signed by the testator, and in the testator’s handwriting, and the testator must have had the capacity and intent to execute a will.
- Doesn’t need to be attested (i.e. witnessed)
- About Half of States (Including Texas) and UPC 2-504(b) allow
- Holographic wills and formal wills have the same effect. Either may revoke the other and either may act as a codicil to the other.
Conditional Wills
Conditional Wills – wills written to become operative upon the happening of a particular event (e.g., death by surgery).
- Majority Rule – presumption that language of condition is not meant to be a condition but rather a statement of the inducement for making the will.
Preprinted Wills Forms -
- Formal Wills?
- Holographic Wills?
Preprinted wills that do not meet the Wills Act requirements cannot be probated as a formal will. BUT, several states allow such filled-in forms to be probated as holographic wills.
Holographic Wills - Signature Rule
Signature – in nearly all states that permit holographic wills, the testator may sign the will anywhere on the face of the document.
- But not signing at the end may raise doubt as to whether the handwritten name was intended as a signature.
Pre-Printed Wills Forms and Holographic Wills - Extent of Testator’s Handwriting
Extent of Testator’s Handwriting – three generations of statutes:
- 1st Gen – entirely written, signed, and dated only in the testator’s hand.
- About 9 states follow
- 2nd Gen (a.k.a “surplusage theory”)– material provisions under which the handwritten portion of the instrument should be given effect as a holographic will if it makes sense without the text not written by the testator.
- E.g., date and introductory matters immaterial.
- 9 states and Texas follow this approach.
- 3rd Gen & UPC – focuses on material provisions and extrinsic evidence allowed to show intent
- __About 9 states follow.
Revocation of Wills -
- general rule
- oral revocation
- automatic probate (UPC)
- Ambulatory wills
All states permit revocation by a subsequent writing under the Wills Act or by a physical act, such as destroying the will.
No Oral Revocation – an oral declaration that a will is revoked is usually insufficient on its own.
Automatic Probate – UPC 2-507 – if a duly executed will is not revoked according the to the revocation statute, it must be admitted to probate.
Ambulatory Will – A will is subject to amendment or revocation by the testator at any time prior to death. All states permit revocation by a subsequent writing under the Wills Act or by a physical act, such as destroying the will.
Revocation of Wills - Revocation by Writing
- Express Revocation
- Implied Revocation
- UPC Incomplete/Complete Disposition
Express and Implied Revocatory Writings – a writing executed with Wills Act formalities may revoke an earlier will in whole or part.
Express Revocation – writing expressly revokes prior will
Inconsistency/Implied Revocation – subsequent will doesn’t include revocation clause but is inconsistent with prior will’s provisions.
- Incomplete Disposition of Testator’s Estate - UPC 2-507 – presumption that a complete disposition of the testator’s estate revokes the prior inconsistency. If not complete disposition of entire estate, subsequent will is treated as a codicil (ie., supplemental change)
Revocation of Wills - Revocation by Physical Act
- General Rule
- Physical Act
- Partial Revocation
General Rule - UPC 2-507(a) – A will or part thereof is revoked by performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part.
- Requirements -
- Capacity to revoke;
-
Intent to revoke; and
- Must be a present intent to revoke, not a future intent. (e.g., “I should change my will” is insufficient)
- Accidental destruction means no intent.
- Physical Act - A satisfactory physical act performed on the will, such as drawing lines through testator’s signature, burning, tearing, canceling (e.g., writing void or cancelled over dispositive provisions), obliterating, or destroying the will or any part of it.
- Physical Act By Someone Other Than Testator – must be in testator’s conscious presence and at his direction.
- Physical Act Must Touch Face of Relevant Provisions? –
- UPC – No
- Majority – Yes.
- Partial Revocation by Physical Act
- Majority and UPC 2-507 – authorizes partial revocation by physical act.
- Minority Rule – only allow partial revocation by a subsequent writing.