Execution

Question 1

When to Discuss Execution

Answer 1

If the exam states that the testator executed a valid will there is no need to discuss execution of the will or capacity of the testator.

Question 2

Requirements of a Valid Will

Answer 2

(1) Signed by the testator or by someone on his behalf at his direction, and either
(2) Witnessed and signed by two individuals or
(3) The material provisions written in the testator’s hand

Question 3

Witness Requirements

Answer 3

The witnesses, being present at the same time, must witness either the testator’s signature, or the testator’s acknowledgment.

Question 4

Witness Requirements Exception

Answer 4

If the testator dies after 2009, the will may still be admitted to probate if the proponent establishes by clear and convincing evidence that at the time the testator signed the will, the testator intended the instrument to constitute his will.

Question 5

Interested Witnesses Rule

Answer 5

If a witness is interested—they receive something under the will more than they would receive in intestacy—then to that extent, there is a presumption of undue influence. If the presumption is not overcome, the witness’ disposition lapses.

Question 6

Holographic Will Requirements

Answer 6

For a holographic Will to be valid, the signature and all material provisions must all be in the testator’s handwriting, but there is no requirement of witnesses.

Thus, a holographic will can incorporate printed boilerplate, but the material provisions—including the naming of executors and trustees, the identification of bequests, the declaration that the instrument is a will, the date and signature, and similar provisions must all still be in the testator’s handwriting.