Wills: execution

Question 1

Capacity

Answer 1

The testator must be at least 18 years old and possess a sound mind.

The testator lacks the requisite mental capacity if she, at the time of execution, did not have the ability to know the:

• Nature of the act;
• Nature and character of his property;
• Natural objects of his bounty; and
• Plan of the attempted disposition.

All persons are afforded the presumption that they have mental capacity. The burden of proving that the testator lacks mental capacity rests on the contestant of the will.

Question 2

Testamentary intent

Answer 2

The testator must understand she is executing a will and intend for it to have testamentary effect. She must generally know and approve of its contents.

Question 3

Attested wills: writing and signature

Answer 3

The will must be in writing and signed by the testator or by some other person in his presence and at his direction.

Question 4

Attested wills: witnesses

Answer 4

Each witness must be of sufficient mental capacity and maturity.

(1) Majority view:

The will must be signed in the joint presence of and attested to by two witnesses.

(2) UPC:

The witnesses do not have to be present at the same time.

The testator need not have to sign in their presence, as long as:

(a) she acknowledges her signature to them before they sign; and
(b) they sign within a reasonable time.

Question 5

Attested wills: interested witnesses

Answer 5

(1) Common law:

At common law, a witness who has a financial interest in the will is an “interested witness” and is not competent to be a witness to the will.

If the interested witness is a necessary witness, the will has not been validly executed.

(2) Modern view:

Many states invalidate the portion of the will that provides an excess portion to the interested witness—any amount in excess of what the witness would otherwise have received.

(3) Uniform Probate Code:

The UPC has abolished the interested witness doctrine.

Question 6

Attested wills: substantial compliance

Answer 6

At common law, strict compliance with the formalities was required,

By contrast, under the Uniform Probate Code, a will that is not executed in compliance with the law will treated as if it were valid if:

(1) there is clear and convincing evidence that the testator intended for the document to serve as his will; and
(2) he has substantially complied with the required formalities.

Question 7

Holographic wills: material provisions

Answer 7

The testator must handwrite the “material provisions” of a holographic will.

“Material provisions” include the beneficiaries of the will and the items that they will receive.

A preprinted will form can still be a valid holographic will, as long as the “material provisions” are handwritten.

The testator must sign the instrument.

Question 8

Holographic wills: witnesses

Answer 8

Although a holographic will need not be witnessed or dated, it must be clear that the testator intended the document to be a will.

Question 9

Will substitutes

Answer 9

A decedent can avoid probate by transferring property via a will substitute:

(1) Joint tenancy, which avoids probate because there is a right of survivorship;
(2) Trusts with the results of a will, which avoid probate because they are inter vivos transfers;
(3) Pour-over wills, as a distribution via trust:

Wills pursuant to which some or all of the decedent’s probate property is given to the trustee of the decedent’s inter vivos trust.

(4) Deeds, as an inter vivos transfer:

If a grantor (owner of land) delivers a deed to a third party (agent) with instructions to give the deed to a person (grantee) upon the grantor’s death, the deed will serve as a will substitute and the deed will be transferred to grantee upon the grantor’s death;

(5) Payable-on-death contracts, e.g., life insurance, because they are inter vivos transfers.

Question 10

Conflicts of law: execution of a will

Answer 10

(1) Personal property:

The law of the deceased’s domicile at the time of death governs questions regarding:

(a) The validity of a decedent’s will regarding personal property; and
(b) The transfer of personal property from someone who dies intestate or who has a will.
(2) Real property:

The law of the situs—the location of the property—governs:

(a) Questions regarding the validity of a decedent’s will regarding real property; and
(b) The transfer of real property from someone who dies intestate or has a will.