Execution of Wills Flashcards
What are the 2 kinds of wills?
Attested and Holographic
Requirements (4) of an attested will:
-In writing
-signed by testator, or by proxy in testator’s presence and by their direction
-must be signed (an “x” is fine) or acknowledge the will in the presence of at least 2 competent witnesses, all of whom are present at the same time
-the witnesses must subscribe the will (sign in testator’s presence, but not necessarily in each other’s presence)
What is a codicil?
an amendment to a will
What are the requirements of a valid codicil?
same as an attested will
Requirements for documents that are not present when the will is executed to become apart of the will (incorporation by reference) (3):
-existed at the time of the will
-will indicates that it is a paper in existence at that time; and
-identified and described with reasonable certainty in the will
How does the memorandum that disposes of tangible personal property work?
need only be identified with reasonable certainty in the will, it does not have to exist at the time the will is executed
Requirements (3) of a holographic will:
-the will must be entirely in the handwriting of the testator (courts are flexible with this requirement)
-two disinterested witnesses must identify the handwriting as the testator’s; and
-the testator must sign the will or have someone else sign the will in the testator’s presence and at their direction
remember the example of the farmer who etched his will on the bender of his tractor as he lay there dying after a rattlesnake bite and how that held up as a holographic will; basically the will must manifest the testator’s intent to make a last and final disposition of the testator’s property, ie testamentary intent
What is the harmless error doctrine?
a document that failed requirements of an attested or holographic will can be probated if the proponent establishes by clear and convincing evidence that the decedent intended the document to constitute her will
What requirement can the harmless error not excuse?
the signature requirement
What are the two exceptions to when the harmless error doctrine can excuse the signature requirement:
-2 ppl mistakenly sign each other’s wills
-the testator signs the self-proving affidavit to the will rather than the will itself
What are the 3 requirements for a court to enforce an oral agreement to devise real property:
-agreement is certain and definite, established by CC
-the party seeing enforcement performed pursuant to the agreement; and
-failure to enforce the agreement would work a fraud on the party seeking enforcement
Will a contract or will prevail?
the contract will prevail for the terms of the contract and the will is going to prevail for everything else [reconfirm this in Josh notes]
