Wills (Testate) Flashcards
FOUR requirements of a will:
- Testamentary capacity… aka the “are you completely insane” test.
- Testamentary intent (you need to actually intend that this document is a will, you can bring in outside evidence for this.)
- Legal Capacity (basically… you need to be 18)
- Complies with state law formalities (HINT: The question will usually TELL us there is a law or statute in the state we’re in, then we can use that to help us analyze the formalities
Testamentary capacity
a. Nature and extent of your property (what kind of stuff do you have)
b. The NATURAL objects of your property (do you know who your relatives and friends are?)
c. The disposition that you are making of the property (do you even know what is happening and who you are giving all this property to?)
d. The ability to connect all the above elements together to form a coherent plan (you need to have at least the pattern recognition of a highly advanced dolphin)
Pro-tip: Mental capacity is PRESUMED and the burden is on the will challenger to show you were suffering from a mental defect.
I’m 18 and not crazy and I understand I’m making a will. What are the formalities of most states?
Most states require: (1) writing, (2) attestation (witnessed by at least two witnesses), (3) signed by testator.
UPC: (1) writing, (2) signed by testator or some other individual in the testator’s “conscious presence” and by the testator’s direction, (3) signed by at least two individuals within a reasonable time after witnessing the signing of the will (this can be anyone) or NOTARIZED.
conscious presence” test… so the testator only needs to know you’re signing it by using their SENSES directly. The MEE could try to trick you like you heard someone sign it through a phone or some shit.
The minority “line of sight” rule is that the testator needs to actually SEE you sign it. Let’s be real… this has like a 97% chance of appearing in the problem if Wills comes up so don’t fuck this one up.
Interested Witnesses
Common law allowed NO TAKERS to witness (anyone receiving a benefit under the will).
The UPC just says fuck it, Taker McWilerson can be there. Because the whole point of the interested witness rule is to prevent undue influence and fraud, and these problems aren’t alleviated by leaving Taker McWilerson out (who is almost always there at the REQUEST of testator). So under the UPC it won’t change anything.
Codicil
A codicil is a supplement to a will made after the will was made. It can modify, amend or revoke the will.
The codicil still has to be signed by the testator and witnessed by two witnesses. A valid codicil republishes the will (the republished will is then deemed to be executed on the same day as the codicil).
It doesn’t need to be typed and can be handwritten by the testator! (this is called a ~Holographic~ codicil)
Incorporation by Reference Requirements:
(1) The writing is in existence at the time the will is created,
a. Bar Exam TRICK: It may not have been around at the time the Will was published, but if it’s around at the time the CODICIL is published… it can be incorporated.
(2) The language of the will actually MANIFESTS intent for the document to be incorporated (in one problem the testator said something like I want that document to “republish” my will and this wasn’t enough… it was kind of the same thing but republish means something different than incorporate – make arguments on both sides),
(3) The language of the will DESCRIBES the writing with particularity to allow it to be identified (does it actually describe it or is the testator playing a little fast and loose with his words? Hit them with law school analysis on this)
How can we revoke it? Two ways.
PHYSICAL ACT REVOCATION
The testator needs to (1) INTEND to revoke it, and (2) the will must be burned, destroyed, torn or cancelled by the testator (or someone at his direction and in his presence).
Revocation by Subsequent Will or Codicil
You can execute a subsequent valid will or codicil to revoke the old will but it will ONLY revoke to the extent it CONFLICTS with the old will. UNLESS you actually say in the new will or codicil “I’m revoking all the shit in the first will in it’s entirety” - you gotta expressly revoke the whole damn thing
Words of Cancellation Approaches:
Common law approach: Words of cancellation must come in contact with words of the will to revoke it.
UPC Approach: Words of cancellation are valid even if they did not come into contact with the words of the will.
Pro-tip: The UPC is always just way more chill and laid back than the common law.
If I give my friend a motorcycle can I just cross motorcycle out and type in “Bookshelf”?
No. This is an MEE ULTRA TRICK: Sometimes they have people “typewrite” changes on their will and try to trick your sleep deprived mind into thinking you are looking at a HOLOGRAPHIC will or codicil. It’s not Holographic because it’s TYPED. (holographic wills must be handwritten).
What the hell is a holographic will or codicil?
This is just about the riskiest thing you could do in all of Wills law. You take out a pencil and just write a bunch of shit on a sheet of paper and sign it (holographic will) with no witnesses around. Or you pencil up your actual will and add in changes then sign it (holographic codicil). This creates chaos in the probate system because people can challenge whether it was the testator’s real handwriting and creates all this ambiguity, etc.
