2. Will validity Flashcards Preview

MEE - Wills > 2. Will validity > Flashcards

Flashcards in 2. Will validity Deck (22)
Loading flashcards...
1

Basics

What is the split of authority regarding compliance with will requirements?

 

Most States

Exact compliance needed

UPC

Substantial compliance needed (minor errors excused)

2

Basics

A will must comply with one of what three sources of law?

 

1. Local law

2. Law where executed, or

3. Law of D's domicile at date of death

3

Basics

Once a will is found valid, what law applies?

Local law

4

Testamentary Capacity

Of what four things must the tesator be aware, and what is required of those four things?

1. Understand the action of making a will

2. Understand the effect of that action

3. Know the general nature and extent of property

4. Must recognise family members

 

ALL ELEMENTS MUST SIMULTANEOUSLY BE HELD IN MIND TO FORM A REASONABLE JUDGMENT

5

Testamentary Capacity

Can a mentally challenged person make a will?

Yes, as long as they meet the requirements for testamentary capacity

6

Testamentary Capacity

Is testamentary capacity a lower or higher standard than contractual capacity?

Lower

7

Testamentary Capacity

When incapacity is adjudicated, there is a rebuttable presumption of?

That there is a lack of capacity

8

Testamentary Capacity

What is the name given to the period within which an otherwise incompetent person may be able to execute a will?

Lucid interval

9

Testamentary Intent

What must the testator intend?

Tesator must have the present intent that the instrument operate as his will

10

Requirements for a holographic will

What is a holographic will?

A will in the testator's handwriting

11

Requirements for a holographic will

What is required of the signature in a holographic will?

Nickname, first name or even initials are okay, and the signature can be anywhere on the document, as opposed to strictly at the end in an attested will

12

Requirements for a holographic will

Are handwritten changes made after the will is completed allowed?

In half the states

13

Attested Wills

What is an attested will?

A will, signed by T or a proxy, witnessed by at least 2 people

14

Attested Wills

What is required of a proxy who signs?

They must be in T's presence, and acting under T's direction

15

Attested Wills

What is required of a signature?

Any mark with the present intent to authenticate the will

16

Attested Wills

Under the UPC, what can replace the requirement of two witnesses?

A notary

17

Attested Wills

What are the two ways in which a will is probated, i.e. confirmed to be valid?

1. Two witnesses testify in court that it is valid, or

2. Self-Proving Affidavit

18

Attested Wills

What is a self-proving affidavit?

T and the witnesses swear under oath that the requirements for a valid will were present

Note: signatures on the self-proving affidavit can replace the signatures required on the will itself

19

Attested Wills

Is a witness ever required to know the contents of a will?

No

20

Attested Wills

Who is an interested witness?

A witness who is also a beneficiary under a will

21

Attested Wills

Does an interested witness invalidate an old will?

Not anymore; but under common law her specific gift may be void

Note: Under the UPC, an interested witness's gift is not void

22

Attested Wills

In what two instances will a gift to interested witness not be void?

1. Where she was a witness in excess of two other witnesses, or

2. Where she would have taken a share even outside of probate, i.e. descendant

Note: Under the UPC, an interested witness's gift is not void