Wills: The Basics Flashcards
What are the three parts to the formation of a will?
Testamentary Intent: Document needs to have legal effect after you die
Testamentary Capacity: The person drafting it needs to be at least 18 and of Sound Mind (ability to understand the world around them)
Formalities: Your will has to comply with formalities as laid out in applicable state law. Three big ones that almost all states require:
The will must be in writing
The will must be signed by the testator
The will must be attested by two witnesses
Some states have more formalities:
Publication: the testator must affirmatively indicate that the document is indeed their will.
Subscription: The signature from the testator must come at the end.
What are the four traditional justifications for Formalities?
Ritual Function: Encourages the seriousness of this process. Talk is cheap. People are careless in their everyday thoughts. Encourages “moral seriousness” and conversation. We force people to slow down and think about their testamentary scheme.
Evidentiary Function: The will is the best evidence of what deceased would have wanted.
Protective Function: An attempt to reduce fraud, having people witness the testator make the will protects testator’s interests and wants. The law is concerned about manipulative schemers.
Channeling Function: Helps court figure out what is supposed to be a will and what’s not. All wills need to have a certain uniform structure. Like checks from a bank.
What are the three formalities for a valid will?
The will must be in writing, will must be attested by two disinterested witnesses, Signed by testator
What are the presence requirements of witnesses?
Line of Sight: Witnesses must be able to see or if they turned their head, be able to see the testator and each other sign the will. (Older Rule)
Consciousness Presence: You should be within range of other person’s (persons signing the will) senses to know they are signing the will. (Newer Rule)
Legislature wants everyone to watch everyone else sign. It’s a slippery slope if a witness isn’t fully present.
Groffman Case Example: Two witnesses weren’t present at the same time and so will was invalid. Attorneys themselves MUST be present to supervise will execution.
What is the strict compliance w/ wills act?
In most states, if you don’t strictly comply with the exact terms of the Wills Act, the will is invalidated. Comply exactly. This is true even if there is no evidence of fraud, lack of capacity, etc.
Why? Rules are easy and cheap to enforce. Most judges adhere to a slippery slope argument. If the court bends on a small signature issue, then another court will use the reasoning to bend on a slightly larger issue and soon courts could have full discretion to probate anything.
Are there exceptions to the presence requirement?
Presence Exception: Matter of Ryan
Disinherited brother contests a will that was signed remotely due to COVID
Court says it’s okay, satisfies presence requirement
What are some scenarios that do or do not count as “writing”?
Does a pre-recorded will video count as “writing?”
-Probably not because of the protective function
-No witnesses
-Not a serious ritual
-Fails on all formalities
Computer File Will
-Easily edited not secure
-How do we know it’s the final draft?
-Not valid
-.pdfs might have a stronger argument
Videotaping an actual will ceremony:
-Can be good evidence if will is contested
-People may not come across as professional in ceremony though
Wills in other languages used in the US:
-Yes it’s okay, will need expert translator
-Establish translator’s credentials
-More steps, time-consuming
-Even it it’s a code to crack, it’s probably possible
-Witnesses don’t usually know what’s in the will, so don’t need to understand it
