Wills Formality

Question 1

What is a formally executed will?

Answer 1

A will that has been drafted by an attorney that has been signed, attested, and is in writing

Question 2

UPC section on attested wills?

Answer 2

2-502

Question 3

In writing means…

Answer 3

(a) A will need not be on paper – all that is required is a reasonably permanent record of the markings that make up a will

A video is not in writing

Question 4

Signature means…

Answer 4

(1) The testator’s signature
(2) Testator’s full name at the end of the document (a mark, cross, abbreviation, or nickname will be sufficient) — a mark must be notarized

Question 5

When can someone be authorized to sign for testator?

Answer 5

a. Testator can authorize someone else to sign on behind of testator, so long as the testator is in the same room as the authorized person when the will is signed

Question 6

What is “subscription?”

Answer 6

requirement that the testator sign at the end of the will

Question 7

Attested means?

Answer 7

Strictest: the will is signed in the presence of 3 witnesses

Question 8

Presence requirement can be determined in 2 ways:

Answer 8

Line of sight

Conscious presence

Question 9

What is line of sight test

Answer 9

The testator must be able to see the witnesses (or vise versa) signed if they were to look; the opportunity to see is what is important

Question 10

What is conscious presence test

Answer 10

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

Question 11

UPC’s position on presence

Answer 11

2-502(a) requires conscious presence

Question 12

Disinterested witness (rule)

Answer 12

the witnesses must be disinterested witnesses, meaning they are not named beneficiaries in the will

Question 13

Who counts as an interested witness?

Answer 13

(a) Anyone mentioned in the will (and/or spouse)

(b) In many states, a spouse that is named in the will

Question 14

common law Consequences of having an interested witness:

Answer 14

the will was voided in its entirety, unless there were enough disinterested witness

Question 15

How to resolve attestation by interested witnesses?

Answer 15

Purging statutes (2 types)

Question 16

Purging statue type 1

Answer 16

Removes the gift from the witness, in order to allow him to quality as a witness

Question 17

Purging statute type 2

Answer 17

The interested witness will be purged of his gift, but only to the extent that it’s greater than his intestate share

Question 18

What happens to the amounts that purged?

Answer 18

The amounts that are purged fall into the residuary estate and go to whoever is the residuary

Question 19

UPC’s position on disinterested witnesses

Answer 19

Doesn’t care about disinterested witnesses, so long as he is:

i. 18 years old or older, and
ii. Competent

Question 20

What is a self proving affidavit

Answer 20

Is signed by witnesses, to attest that they saw the testator sign the will and they themselves signed, indicated that all the formalities have been followed

Question 21

What is the strict compliance rule

Answer 21

in order for a will to be admitted to probate, it must be in strict compliance with the formal requirements of the Wills Act

Question 22

Requirements of strict compliance rule

Answer 22

(a) In writing,
(b) Signed by the testator,
(c) Attested to by at least two witnesses

(1) All (or both) parties should be disinterested parties that have nothing to do with the will (i.e. they are not named as beneficiaries under the will)

Question 23

Substantial Compliance Doctrine & Harmless Error Rule

Answer 23

Both doctrines forgive non-material defects in the execution of a will

Question 24

Substantial Compliance Doctrine

Answer 24

Under substantial compliance, even if a will is not executed in strict compliance with the Wills Act formalities, the court may probate the will if:

(1) clear and convincing evidence shows that the testator intended this document to constitute his last will and testament
(2) clear and convincing evidence shows that the will substantially complies with the Wills Act formalities

Question 25

UPC 2-503 Harmless Error Rule

Answer 25

If a will is not executed in strict compliance with Wills Act formalities, court may probate the wills with:

(1) clear and convincing evidence shows that the testator intended this document to constitute his last will and testament

Question 26

How to safeguard will:

Answer 26

i. Make copies
ii. Have the witnesses and testator use blue ink to determine which is the original will

iii. Some firms DO NOT retain the original – because that would solicit extra business
(a) BUT if the client wants attorney to keep the will, then attorney must have a form ready for the client to sign that the client required the attorney keep the will to prove that it was solicited

Question 27

If will is sinned by the wrong spouse

Answer 27

a will is not valid if it purports to be the will of one person but is signed by the his or her spouse

Question 28

What is a holographic will

Answer 28

DE: not allowed, PA & NJ, yes (1/2 of states in US allow)

i. A will written by the testator’s hand and signed by the testator
(a) It has not been formally executed by the attorney

Question 29

Common requirements of holographic will

Answer 29

(1) Written in testator’s hand,
(2) Signature (at the end of the will)
(3) Date

Question 30

UPC’s position on holographic wills

Answer 30

UPC 2-502 — authorizes holographic wills

Question 31

Dangers of holographic wills

Answer 31

i. Forgery

ii. No witnesses makes it harder to verify intent

Question 32

Pre-printed wills

Answer 32

Beware

Are not accepted in a majority of states because the material portions are not in the handwriting of the testator

Question 33

More lenient view on pre-printed wills

Answer 33

As long as testamentary intent is clear, the will will be probated

Question 34

More stringent view on pre-printed wills

Answer 34

If testamentary intent cannot be found after pre-printed words have been blocked out, the will won’t be probated

Question 35

What are codicils

Answer 35

Documents that modify a will

Question 36

What does revoking a codicil do?

Answer 36

It only revokes the codicil, not the original will

Question 37

Republication by Codicil

Answer 37

Any validly executed will is considered as re-executed (i.e. republished) as of the date of the codicil

Beware
i. Republication by codicil cannot republish any will that wasn’t valid to begin with

Question 38

What is Integration

Answer 38

i. All documents/pieces of paper present at the time of execution and that the testator intends to be part of the will are treated as pages of the will

Question 39

UPC 2-510 Incorporation by Reference

Answer 39

A writing that was in existence when the will is executed may be incorporated into the will IF:

(a) The writing of the will shows the intent to do so
(b) The will sufficiently describes the incorporated writing

Question 40

UPC 2-513 Separate writing

Answer 40

A separate wiring that is not in existence when the will is executed, but is in existence at the time of the testator’s death, may actually incorporate lists of tangible personal property is sufficiently described by the will

Question 41

Act of Independent Significance

Answer 41

If this is the case, it will be whichever thing or party that fits the description at the time of testator’s death