Execution of Wills Flashcards
What are the 4 requirements for an attested will ?
- Must be in writing
- Signed by the testator, or by a proxy at the testator’s direction and in her presence
- Testator must either sign the will (any mark will count) OR acknowledge the will in the in the presence of at least 2 competent witnesses, who are present at the same time, and
- The witnesses must sign the will in the presence of the teator, but do not need to sign in each others presence
Is a witness incompetent because of any interest in the will/estate of the testator ?
No
Conscious presence Test in VA
Witnesses are “present” as long as the testator is aware of their presence and what they are doing, and would be able to see them if she tried.
What is a codicil ?
An amendment to a prior will that must be executed with will formalities; deemed to re-execute a will, even a revoked will, at the time of the codicil
Incorporation by reference
documents not present when the will is executed become part of the will if:
1. The document existed at the time of the will,
2. The will indicates that is a paper in existence at that time; and
3. Identified and described with reasonable certainty in the will
Tangible personal property list
A written statement or list, can be used to dispose of tangible personal property; does not need to be executed with will formalities, can be prepared or amended after the will is executed
Requirements for tangible personal property list
- The will must refer to the writing
- The writing must describe both the items of personal property and the identity of the recipients with reasonable certainty
- The writing must be signed by the testator
- The property must not otherwise be devised in the will
Holographic wills requirements
- Wholly in testators writing
- two disinterested witness must identify the handwriting has the testator’s
- Testator must sign the will on its face of have someone in her presence sign at her direction
Holographic wills- What about words not in testator’s handwriting
typewritten words or slight alterations do not automatically invalidate the holographic will.
However, the handwritten words must stand alone as a holographic will
holographic will- testamentary intent
the will must, on its face, express testator’s testamentary intent
When to use Harmless Error
When a document fails to meet the requirements of a holographic will
How to use harmless error
Will can only be probated if the proponent of the will establishes by clear and convincing evidence that the decedent intended the document to constitute her will (can be established by extrinsic evidence)
When can you not use harmless error
Harmless error cannot be used to excuse compliance with any requirement for a testator’s signature except:
1. 2 persons mistakenly signed each others will
2. A person signs a self-proving certificate to a will instead of the will itself
No “negative will”
Cannot disinherit heirs at law without giving property to someone else; may execute testamentary instrument that appoints executors without distributing property
Revocable trust
Not subject to the requirements for executing a will, does not pass through formal probate
Pour over trust
a testator may devise probate assets to a pour over trust, without satisfying the rules for incorporation by reference if:
1) the trust is sufficiently identified in the will; and
2) the trust terms are set forth in a written instrument other than the will
Transfer on death deed
Can specify a beneficiary who will receive the real property at the owner’s death. Must be recorded in the circuit court where property is located
Are contracts to give property by a will enforceable
Yes, if there is a valid contract
Courts enforce oral agreements to devise real property when
- The agreement is certain and definite, established by clear and convincing evidence
- The party seeking enforcement performed pursuant to the agreement; and
- Failure to enforce the agreement would work a fraud on the party seeking enforcement
