Ch 2: Execution of Wills

Question 1

What is a will? (T)

Answer 1

A will is an instrument that disposes of an individual’s (the testator’s) property at death. A will may also (or exclusively) appoint an executor, nominate a guardian, or revoke a prior will.

Question 2

What does a formal will require? (T)

Answer 2

A formal will requires

(1) a writing that the testator signs with present testamentary intent in the joint presence of two witnesses,

(2) that both witnesses understand the significance of the testator’s act, and

(3) that the will has no legal effect until after the testator’s death.

Question 3

How can a handwritten will qualify as a traditional, attested will? (T)

Answer 3

A handwritten will can qualify as a traditional, attested will, if the other will formalities are met (i.e., signature and witnesses).

Question 4

What does it mean that a will must be a writing signed by the testator? (T)

Answer 4

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

Question 5

Where does the UPC require the signature on a will to be located? (T)

Answer 5

Others (and the UPC) allow the signature on any part of the will. In these states, while a signature elsewhere does not invalidate the will, any language appearing after the signature is invalid.

Question 6

For the purposes of will execution, what is capacity? (T)

Answer 6

To create a valid will, the testator must be at least 18 years old and of sound mind.

Question 7

In some states, how can a conservator for an individual who lacks testamentary capacity make a will for his conservatee? (T)

Answer 7

In some states, a conservator for an individual who lacks testamentary capacity can make a will for his conservatee if a court orders him to do so.

Question 8

What are the requirements of mental capacity for a testator? (T)

Answer 8

A testator meets the requirement of mental capacity if she knows:

i) The nature and extent of her property;

ii) The persons who are the natural objects of the testator’s bounty and have the highest moral claims to the testator’s property;

iii) The disposition the testator is attempting to make; and

iv) The interrelationship of these items regarding the testamentary plan formulated in the will.

Question 9

Who is presumed to have mental capacity? (T)

Answer 9

All persons are presumed to have mental capacity.

Question 10

Because all persons are presumed to have mental capacity, where does the burden lie of proving the testator lacks mental capacity? (T)

Answer 10

The burden of proving that the testator lacks mental capacity rests on the contestant to the will.

Question 11

What is required as the form of signature on the will? (T)

Answer 11

The testator’s complete formal name is not required, as long as the signature indicates his desire to sign (e.g., even an “X” is acceptable).

Question 12

What happens (in some jurisdictions) if the testator signs by mark? (T)

Answer 12

If the testator signs by a mark, some jurisdictions may require that the mark be made in the presence of a witness.

Question 13

What is the conscious presence test? (T)

Answer 13

In most jurisdictions and under the UPC, the will may be signed by another person provided that the “conscious presence” test is satisfied (i.e., that the other person signs the testator’s name, in the presence and at the express direction of the testator).

Question 14

What is the rule regarding the signature of witnesses? (T)

Answer 14

Under the majority view, a will must be signed in the joint presence of, and attested to by two witnesses.

Question 15

Is an attestation clause required on a will? (T)

Answer 15

An attestation clause is not required, but it can be helpful to prove due execution of the will in cases in which the witness has no memory of signing or has a faulty memory.

Question 16

Are the witnesses required to sign at the end of the will? (T)

Answer 16

No. The witnesses do not need to sign at the end of the will.

Question 17

Regarding witnesses, what do will execution statutes commonly provide? (T)

Answer 17

Will execution statutes commonly provide that another person may sign a testator’s will if it is done at the testator’s direction and in the testator’s presence.

Question 18

Regarding witnesses during will executions, what is the rule for presence? (T)

Answer 18

The witnesses do not need to read the will, but they must be aware that the instrument is a will. In most jurisdictions, the testator must sign or acknowledge the will in the witnesses’ presence, and the witnesses must sign in the testator’s presence.

Question 19

Do the witnesses need to sign the will in each other’s presence? (T)

Answer 19

No. The witnesses do not necessarily have to sign in each other’s presence.

Question 20

What is the UPC rule regarding the presence of witnesses? (T)

Answer 20

Under the UPC, the witnesses do not need to sign the will in either the presence of the testator or the other witnesses. Rather, each witness must sign the will within a reasonable time after witnessing the testator sign or acknowledge the will.

Question 21

What is the line-of-sight test? (T)

Answer 21

The “line-of-sight” test (the traditional approach) requires the joint presence of the witnesses and the testator, who must observe or have the opportunity to observe each other sign the will. If the testator does not sign in the witnesses’ presence, then the signature must be acknowledged.

Question 22

What is the conscious presence test? (T)

Answer 22

The “conscious-presence” test (the modern approach) is broader than the line-of-sight test. The conscious-presence test requires only that the party observing the act, either testator or witness, be aware that the act is being performed.

Question 23

When is the conscious-presence test endorsed by the UPC? (T)

Answer 23

This method is endorsed by the UPC only for situations in which the will is signed by another person on the testator’s behalf.

Question 24

When a testator acknowledges her signature to witnesses over the telephone, does this satisfy the conscious presence test? (T)

Answer 24

No. When a testator acknowledges her signature to witnesses over the telephone, courts have held that this does not satisfy the “conscious presence” requirement.

Question 25

Regarding witnesses and the execution of wills, what are the age and competency requirements? (T)

Answer 25

Witnesses must have sufficient mental capacity and maturity to comprehend the value of witnessing a will.

Question 26

When is competency determined? (T)

Answer 26

Competency is determined at the time of signing.

Question 27

Does the subsequent incompetence of a testator or witness invalidate the will? (T)

Answer 27

No. The subsequent incompetence of a testator or witness does not invalidate a will.

Question 28

What is the purge theory regarding interested witnesses? (T)

Answer 28

Under this approach, a will may be valid despite the presence of an interested witness, but the portion of the will providing an excess to the interested witness may be invalidated.

Question 29

Under the purge theory, how do states determine excess portions? (T)

Answer 29

To determine the excess portion, calculate the amount the interested witness would receive if the will were invalid (i.e., under the intestacy statute or prior will) and the amount the witness stands to receive under the will. If the amount to be received under the will is greater, then the excess interest is purged unless: i) The interested witness is a third witness signing along with two other disinterested witnesses; or ii) The interested witness would have taken had the will not been probated.

Question 30

What is the UPC's stance on the purge theory and the interested witness doctrine in general? (T)

Answer 30

The UPC, which previously followed the purge theory, has now abolished the interested witness doctrine.

Question 31

What is the rule regarding testamentary intent where the testator must understand the nature of the act? (T)

Answer 31

The testator must execute the will with present testamentary intent. When the testator signs the instrument, he must understand that he is executing a will and must intend for it to have testamentary effect.

Question 32

What is testamentary intent a question of? (T)

Answer 32

Testamentary intent is a question of fact determined by an examination of the will and the surrounding circumstances.

Question 33

Are the words in the will automatically conclusive? (T)

Answer 33

No. The words in the will are not automatically conclusive.

Question 34

When is a will ineffective? (T)

Answer 34

A will is ineffective if the testator intends it only as a joke or to accomplish another purpose.

Question 35

Does the testator need to read the will or understand all its technical provisions for the will to be valid? (T)

Answer 35

No. The testator does not need to read the will or understand all its technical provisions, but he must generally know and approve of its contents.

Question 36

What happens under the doctrine of integration? (T)

Answer 36

Under the doctrine of integration, the will consists of all pages that are present at execution and intended to form part of the will, which can be shown by physical connection of the pages (e.g., a staple) or by the ongoing nature of the will's language.

Question 37

How can problems be prevented regarding integration? (T)

Answer 37

Problems can be prevented by carefully fastening the pages before the testator signs and by having the testator sign or initial each numbered page of the will.

Question 38

What is the common law rule regarding compliance with the will formalities? (T)

Answer 38

At common law, strict compliance with the will formalities was required, as these were thought to serve important ritual, evidentiary, and protective functions.

Question 39

What do a minority of jurisdictions (and the UPC) give the courts regarding compliance with will formalities? (T)

Answer 39

A minority of jurisdictions and the UPC give courts the power to probate a noncompliant will when there is clear and convincing evidence that the decedent intended for the document to serve as his will and has substantially complied with the statutory formalities.

Question 40

What are holographic wills? (T)

Answer 40

A holographic will is completely handwritten and signed by the testator.

Question 41

What legal bodies recognize holographic wills? (T)

Answer 41

Holographic (i.e., handwritten) wills are recognized by the UPC and in approximately one-half of the states.

Question 42

What does the UPC require regarding the compliance with holographic wills? (T)

Answer 42

The UPC merely requires that the material provisions of the will are written by hand.

Question 43

What is the difference between holographic and attested wills? (T)

Answer 43

Unlike attested wills, a holographic will cannot be signed by another person on the testator's behalf.

Question 44

Do holographic wills need to be witnessed? (T)

Answer 44

No. A holographic will does not need to be witnessed. But remember that a handwritten will may qualify as a formal attested will if all the will formalities are met.

Question 45

What is the date requirement regarding holographic wills? (T)

Answer 45

Some states require that a holographic will be dated. Other jurisdictions, including the UPC, have no such requirement.

Question 46

What is the requirement for testamentary intent regarding holographic wills? (T)

Answer 46

It must be clear that the testator intended the document to be a will. Intent can be presumed by certain language (e.g., “I bequeath”) or by the testator’s use of a printed form will.

Question 47

What does the UPC state regarding the testator's intent for holographic wills? (T)

Answer 47

The UPC expressly states that the testator’s intent does not need to be found exclusively in the testator’s handwriting. Intent can be discerned from other written parts of the will or from extrinsic evidence.

Question 48

In a jurisdiction requiring strict compliance, what must happen for holographic wills? (T)

Answer 48

A jurisdiction requiring strict compliance will require that the testator’s intent be discernible by the handwritten parts of the will as opposed to preprinted parts on a form will.

Question 49

Are interlineations after the will is complete effective? (T)

Answer 49

Yes. Interlineations after the will is complete are effective in most jurisdictions that recognize holographic wills.

Question 50

What is a self-proved will? (T)

Answer 50

Under the UPC, a will executed with attesting witnesses may be made “self-proved” by acknowledgment by the testator and affidavits of the witnesses before a court officer in substantial accordance with a prescribed form. Executing a “self-proved will” removes the need for the attesting witnesses to testify in formal probate

Question 51

In a self-proved will, may the witnesses’ signatures on the affidavit may be counted as signatures on the will if the witnesses failed to sign the actual will? (T)

Answer 51

Yes. Additionally, in many jurisdictions, the witnesses’ signatures on the affidavit may be counted as signatures on the will if the witnesses failed to sign the actual will.

Question 52

What is a nuncupative will? (T)

Answer 52

Nuncupative wills are oral wills.

Question 53

When are nuncupative wills generally valid? (T)

Answer 53

Nuncupative wills (i.e., oral wills) are generally valid only for the disposition of personal property in contemplation of immediate death.

Question 54

Are nuncupative wills valid in most states and the UPC? (T)

Answer 54

No. Nuncupative wills are invalid under the UPC and in most states.

Question 55

In jurisdictions where they are valid, what do nuncupative wills require? (T)

Answer 55

In jurisdictions where they are valid, nuncupative wills must have at least two witnesses, can devise only a limited amount of personal property, and may require that the testator die within a prescribed period after making the oral will.

Question 56

What is a codicil? (T)

Answer 56

A codicil is a supplement to a will that alters, amends, or modifies the will, rather than replacing it.

Question 57

How must a codicil be executed? (T)

Answer 57

A codicil must be executed with the same formalities as a will, but it does not need to be executed with the same formalities as the will that it alters, amends, or modifies.

Question 58

How may an attested will be altered, amended, or modified? (T)

Answer 58

An attested will may be altered, amended, or modified by a holographic codicil.

Question 59

How may a holographic will may be altered, amended, or modified? (T)

Answer 59

A holographic will may be altered, amended, or modified by an attested codicil.

Question 60

When does the validly executed codicil republish the will? (T)

Answer 60

A validly executed codicil republishes the will as of the date of the codicil.

Question 61

May a codicil validate an invalid will? (T)

Answer 61

Yes. A codicil may even validate an invalid will if the codicil refers to the will with sufficient certainty to identify and incorporate it, or if the codicil is on the same paper as the invalid will.

Question 62

What do courts look to determine whether to read the will's provisions as having been republished as of the date of the codicil? (T)

Answer 62

Courts look to the testator's intent to determine whether to read the will's provisions as having been republished as of the date of the codicil.

Question 63

Regarding foreign and international wills, what does the Uniform Wills Recognition Act (UWRA) state about location? (T)

Answer 63

Under the UWRA, a will is valid regardless of where it was made, the location of the testator’s assets, and the testator’s nationality, domicile, or residence, provided it complies with the act.

Question 64

For a will to be valid, what does the UWRA require? (T)

Answer 64

The UWRA requires that the will be in writing, signed, and witnessed by two individuals plus a third person who is authorized to act in connection with international wills and who must prepare a certificate to attach to the will. The testator must declare the instrument to be his will and demonstrate knowledge of its contents.

Question 65

What is a will substitute? (T)

Answer 65

A will substitute is a method of transferring a decedent’s property outside of probate.

Question 66

Does distribution of nonprobate assets involve a court proceeding? (T)

Answer 66

No. Distribution of nonprobate assets does not involve a court proceeding. Distribution is accomplished by the terms of a trust, deed, or contract.

Question 67

How is property placed in a trust distributed? (T)

Answer 67

Property placed in trust by an individual during her lifetime is distributed by the terms of the trust, not the terms of the individual’s will or the intestate rules.

Question 68

How can trusts be structured to function like wills? (T)

Answer 68

The trust can be structured so that the creator (settlor) of the trust serves as the manager (trustee) of the trust and the beneficiary of the trust during the creator’s lifetime, and provide for the continued management of the trust property by a trustee or its distribution upon the creator’s death.

Question 69

What is one advantage of property placed in a trust? (T)

Answer 69

One advantage is that the creation of trust is not subject to the requirements for the execution of a will, such as attesting witnesses.

Question 70

What is a pour-over trust? (T)

Answer 70

A pour-over devise is a provision in a will that directs the distribution of property to a trust when an event occurs. The property passes by the terms of the trust without the necessity of the will reciting the entire trust.

Question 71

What happens under the common-law doctrine of "incorporation by reference? (T)

Answer 71

Under the common-law doctrine of “incorporation by reference,” if a will refers to an unattested document that is in existence at the time the will is signed, then the terms of that document could be given effect in the same manner as if it had been properly executed (i.e., it is incorporated into the will). However, documents created or changed after the will is executed are not incorporated.

Question 72

Under the Uniform Testamentary Additions to Trusts Act (UTATA), how may a will "pour over" estate assets into a trust, even if the trust instrument was not executed by the Statute of Wills? (T)

Answer 72

Under the UTATA, a will may “pour over” estate assets into a trust, even if the trust instrument was not executed by the Statute of Wills, if: i) The trust is identified in the will; and ii) Its terms are set forth in a written instrument, which may be executed before, contemporaneously, or after the will. If these requirements are met, the pour-over bequest is valid even if the trust is unfunded, revocable, and amendable.

Question 73

What is a Totten trust? (T)

Answer 73

A Totten trust is a designation given to a bank account in a depositor’s name as “trustee” for a named beneficiary.

Question 74

Is a Totten trust considered a true trust? (T)

Answer 74

No. A Totten trust is not a true trust because there is no separation of legal and equitable title.

Question 75

What happens in a Totten trust? (T)

Answer 75

During the depositor’s lifetime, the depositor retains control of the passbook and the ability to make deposits and withdrawals.

Question 76

How can a Totten trust be revoked? (T)

Answer 76

A Totten trust can be revoked by any lifetime act manifesting the depositor’s intent to revoke, or by will.

Question 77

What is the difference between a joint bank account and a Totten Trust? (T)

Answer 77

Unlike with a joint bank account, the amount in a Totten trust can be devised.

Question 78

How can a deed transfer property upon the the grantor's death outside of probate? (T)

Answer 78

A deed can transfer property upon the grantor's death outside of probate if the deed is executed with the present intent of transferring a property interest to the grantee (e.g., a remainder interest). In that case, the deed does not need to comply with the requirements for execution of a will.

Question 79

In most jurisdictions, if the grantor intends that the grantee have the property interest only upon the grantor’s death (i.e., testamentary intent), when is the deed effective? (T)

Answer 79

In most jurisdictions, if the grantor intends that the grantee have the property interest only upon the grantor’s death (i.e., testamentary intent), the deed is not effective to transfer the property interest unless the deed complies with requirements for the execution of a will.

Question 80

What is the minority rule regarding the transfer of real estate upon death? (T)

Answer 80

A minority of jurisdictions allow for the transfer of real estate on death using a transfer on death (TOD) deed, which merely requires the same formalities as an inter vivos deed, as opposed to will formalities.

Question 81

How can property that is jointly owned pass, upon the death of a joint tenant, to the other joint tenants? (T)

Answer 81

Property that is jointly owned can pass, upon the death of a joint tenant, to the other joint tenants automatically, rather than by the terms of the deceased joint tenant’s will or the intestacy rules.

Question 82

What are the two forms of survivorship property that most states recognize? (T)

Answer 82

Many states recognize two forms of survivorship property—joint tenancy with right of survivorship and, for a married couple, tenancy by the entirety.

Question 83

When may amounts on deposit in bank account be transferred? (T)

Answer 83

Amounts on deposit in a bank account may be transferred at death through a joint or multiple-party account designation.

Question 84

Who has a right to the account proceeds for a join bank account when someone dies? (T)

Answer 84

The surviving tenant or tenants have an absolute right to the account proceeds, unless extrinsic evidence is introduced that the decedent added the tenant or tenants for convenience purposes only.

Question 85

What happens if a joint tenant was added to a joint bank account for convenience only? (T)

Answer 85

If the tenant was added for convenience purposes only, the cotenant is treated as an agent of the original owner of the account. In that case, some courts, including those following the UPC, set aside the joint tenancy in the accounts.

Question 86

Need to know joint tenancy? (T)

Answer 86

Other courts affirm the joint tenancy, relying on the parol-evidence rule to exclude evidence of the depositor’s intentions. Still other courts have created a presumption that cotenants who have a present right to demand payment from a joint or multiple-party account, whether the account is in the form of a joint and survivor account or an agency account, own the account in proportion to their contributions to the account.

Question 87

Typically, how can a beneficiary collect property held under a payable-on-death (POD) or transfer-on-death (TOD) agreements? (T)

Answer 87

Typically, to collect property held under a payable-on-death (POD) or transfer-on-death (TOD) agreement, the beneficiary must file a death certificate with the custodian holding the property. Ex: A bank account with a POD designation, a security registered in beneficiary form or with a TOD designation, retirement benefits to be paid to a beneficiary, and an insurance policy on the decedent's life.

Question 88

What is the rule concerning life insurance? (T)

Answer 88

A beneficiary of a life insurance policy takes by virtue of the insurance contract. The proceeds are not part of the decedent’s estate, unless they are payable to the decedent’s estate as beneficiary.

Question 89

In most states, how are life insurance proceeds payable? (T)

Answer 89

In most states, life insurance proceeds are payable to the beneficiary named in the beneficiary-designation form filed with the insurance company, even if the insured names a different beneficiary in a later-executed will.