WILLS RULES! Flashcards
Will Definition
A will is a conveyance instrument that takes effect upon testator’s death.
Will Requirements for Execution
NC requires (1) testator be 18, (2) in writing, (3) signed by testator in presence of two witnesses, (4) who sign in testator’s presence, and (5) executed by testator with testamentary intent.
Writing After Signature
Signature may appear anywhere on will; thus, writing below is good so long as it was present at execution.
Clause Added After Execution
Just the clause itself will be invalid.
Presence Requirement - Line of Sight Test
Presence is satisfied if testator could see the witnesses sign if he looked; need not look though.
Interested Witness
An interested witness does not invalidate execution, but takes nothing if there are not two disinterested witnesses.
Holographic Will
Holographic will valid if (1) written entirely in testator’s handwriting, (2) his name or signature on writing, and (3) the will is found in a safe place. To probate, three witnesses must attest to the handwriting and one testifies that the will was found in a safe place.
Nuncupative Will
Nuncupative will is valid to dispose of personal property if (1) spoken in last illness, (2) before two disinterested witnesses, (3) he actually dies from it, and (4) probated in 6 months unless written in 10 days.
Self Proved Will
If testator and witnesses sign affidavit before a notary; can be done after original execution of will as well.
Probating Will - Not Self Proved
Probate requires testimony of two attesting witnesses as to testator’s sound mind, signature, and presence.
Revocation by Physical Act
To revoke by physical act, will must be (1) burnt/torn/cancelled/obliterated/destroyed, (2) with simultaneous intent to revoke, and (3) by testator himself or by another at his direction and in his presence. However, revocation by physical act presumed if will was last seen in testator’s presence and control, and not found upon his death.
Lost Will - Destroyed but NOT Revoked
If destroyed but not revoked, lost wills statute requires that (1) due execution be proved in normal way, (2) will’s contents must be clearly proved by copy or testimony, and (3) absence must be explained.
Codicil
A testamentary instrument that amends a will and must be executed with same formalities. Thus, a second will, not revoking the first, is treated as a codicil: terms must be read together. If conflict, later one in time controls.
Revival of Revoked Wills
No automatic revival if revoked; it must be re-executed.
Divorce
A divorce following a will revokes all provisions in favor of the ex-spouse.
Line Striking
Crossing out a provision is partial revocation by physical act. However, addition not valid unless re-executed.
Dependent Relative Revocation
Revocation based on mistake of fact/law can be disregarded if testator would not have revoked but for the mistake.
Incorporation by Reference
To incorporate by reference, (1) writing must be in existence at date of will’s execution, (2) will must manifest an intent to incorporate the writing, and (3) will must describe writing to permit its identification.
Acts of Independent Significance
Acts or events of non-testamentary motives will not change the will’s terms even though they impact them.
Lapse
If beneficiary dies before testator, his gift lapses unless beneficiary is testator’s grandparent or descendant of grandparent who leaves surviving issue; then gift passes to her issue regardless of her will.
Class Gift
Anti-lapse statute still applies to class members who fall within it. If not a proper relative, surviving class members take the gift instead of it going to the residue of the testator’s estate.
Residue to Two or More Persons
If residuary estate is devised to two or more persons, and gift fails to one of them, the surviving residuary devises take the entire residue in proportion of their interests UNLESS he is a proper family member under the anti-lapse statute.
