Wills: Formalities and Forms Flashcards
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signature at the end of a will
publication
Testator declaring his will in front of witnesses
5 Functions of will formalities
- evidentiary
- ritual
- cautionary
- protective
- channeling
Strict compliance
a will must exactly meet the requirements of the will formalities, or the will will not be valid
Meaning of ‘presence’
line of sight- testator was capable of seeing witnesses sign the will
conscious presence test- the testator was generally conscious of what was going on and the witnesses signature
UPC 2-502- no requirement that the witnesses have to sign in the testator’s presence, rather, the testator must be consciously present
Will
a testamentary instrument created by the testator to further his or her wishes after death. There is a presumption that it is VALID, but this is rebuttable
What law governs a will
the state in which the decedent was domiciled governs the will
Substantial compliance doctrine
the will met the formalities of the wills act substantially enough and the intent of the testator is conveyed
UPC 2-503. Harmless error rule
essentially, the writing of the will will be treated as if it is in compliance with the wills formalities act if it establishes by clear and convincing evidence that it is intended to be the testator’s will
Witnesses
the individuals that observe a testator sign his will and sign to affirm that it is the testator’s will and he wasn’t forced into the will
Holographic will
a handwritten will
In new york, they holographic will is only available to military personnel
what does ‘ambulatory’ mean
the will is subject to revocation and modification by the testator at any time
3 primary ways to revoke a will
- a writing executed within the rules of the Wills formalities act
- a physical act, i.e. destroying, obliterating, burning
- create a new will wholly inconsistent with the former
interested witness
a witness that has in beneficiary interest in the testator’s estate
dependent relative revocation
revocation of a will will be disregarded if the testator only revoked the original will under the mistaken belief of law or fact the the new one would be valid
can an old will be revived by revoking the new one?
No. in order to revive an old will the testator must:
- create a writing that declares the old will as the one the testator wants to operate
- re-execute and republish the will
- create a codicil that incorporates by reference the old will
What does a divorce do to a will
a divorce voids the provisions for the spouse
integration
all papers at the time of execution and intended to be part of the will are treated as such even if the papers are not all in accordance with the will formalities act
4 parts of testamentary capacity
- know what you are doing
- know what you have in your estate
- know how you are disposing of your estate
4 be able to articulate all of this
insane delusion
a false sense of reality that is adhered to against all reason and affects testamentary capacity and materially affects the testator’s decision in the will
undue influence
overreaching by a wrongdoer that takes advantage of a relative inferiority
Pay close attention to:
- confidential relationships
- heavy involvement of the suspected overreacher
- major discrepancies between older wills and new one
Fraud
wrongdoer knowingly misrepresents the facts upon which a testator makes their will
Fraud in the execution
when a person knowingly or recklessly misrepresents the contents or character of the document signed by the testator
fraud in the inducement
the testator was intentionally misled by a fact that cause him to make a different devise than he otherwise would have
Duress
when the testator’s will is subjected to the will of the wrong doer
dead mans statute
cant use a dead man’s oral statements to support a claim against his estate
will contest
where it is conceded that the will is in accordance with the formalities, but the it is not a product of the testator’s own true volition
