Wills Formality Flashcards
What is a formally executed will?
A will that has been drafted by an attorney that has been signed, attested, and is in writing
UPC section on attested wills?
2-502
In writing means…
(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
Signature means…
(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
When can someone be authorized to sign for testator?
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
What is “subscription?”
requirement that the testator sign at the end of the will
Attested means?
Strictest: the will is signed in the presence of 3 witnesses
Presence requirement can be determined in 2 ways:
Line of sight
Conscious presence
What is line of sight test
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
What is conscious presence test
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
UPC’s position on presence
2-502(a) requires conscious presence
Disinterested witness (rule)
the witnesses must be disinterested witnesses, meaning they are not named beneficiaries in the will
Who counts as an interested witness?
(a) Anyone mentioned in the will (and/or spouse)
(b) In many states, a spouse that is named in the will
common law Consequences of having an interested witness:
the will was voided in its entirety, unless there were enough disinterested witness
How to resolve attestation by interested witnesses?
Purging statutes (2 types)
Purging statue type 1
Removes the gift from the witness, in order to allow him to quality as a witness
Purging statute type 2
The interested witness will be purged of his gift, but only to the extent that it’s greater than his intestate share
What happens to the amounts that purged?
The amounts that are purged fall into the residuary estate and go to whoever is the residuary
UPC’s position on disinterested witnesses
Doesn’t care about disinterested witnesses, so long as he is:
i. 18 years old or older, and
ii. Competent
What is a self proving affidavit
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
What is the strict compliance rule
in order for a will to be admitted to probate, it must be in strict compliance with the formal requirements of the Wills Act
Requirements of strict compliance rule
(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)
Substantial Compliance Doctrine & Harmless Error Rule
Both doctrines forgive non-material defects in the execution of a will
Substantial Compliance Doctrine
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
