Execution of Wills

Question 1

What are the 4 requirements for an attested will ?

Answer 1

1. Must be in writing
2. Signed by the testator, or by a proxy at the testator’s direction and in her presence
3. 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
4. The witnesses must sign the will in the presence of the teator, but do not need to sign in each others presence

Question 2

Is a witness incompetent because of any interest in the will/estate of the testator ?

Answer 2

No

Question 3

Conscious presence Test in VA

Answer 3

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.

Question 4

What is a codicil ?

Answer 4

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

Question 5

Incorporation by reference

Answer 5

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

Question 6

Tangible personal property list

Answer 6

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

Question 7

Requirements for tangible personal property list

Answer 7

1. The will must refer to the writing
2. The writing must describe both the items of personal property and the identity of the recipients with reasonable certainty
3. The writing must be signed by the testator
4. The property must not otherwise be devised in the will

Question 8

Holographic wills requirements

Answer 8

1. Wholly in testators writing
2. two disinterested witness must identify the handwriting has the testator’s
3. Testator must sign the will on its face of have someone in her presence sign at her direction

Question 9

Holographic wills- What about words not in testator’s handwriting

Answer 9

typewritten words or slight alterations do not automatically invalidate the holographic will.

However, the handwritten words must stand alone as a holographic will

Question 10

holographic will- testamentary intent

Answer 10

the will must, on its face, express testator’s testamentary intent

Question 11

When to use Harmless Error

Answer 11

When a document fails to meet the requirements of a holographic will

Question 12

How to use harmless error

Answer 12

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)

Question 13

When can you not use harmless error

Answer 13

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

Question 14

No “negative will”

Answer 14

Cannot disinherit heirs at law without giving property to someone else; may execute testamentary instrument that appoints executors without distributing property

Question 15

Revocable trust

Answer 15

Not subject to the requirements for executing a will, does not pass through formal probate

Question 16

Pour over trust

Answer 16

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

Question 17

Transfer on death deed

Answer 17

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

Question 18

Are contracts to give property by a will enforceable

Answer 18

Yes, if there is a valid contract

Question 19

Courts enforce oral agreements to devise real property when

Answer 19

1. The agreement is certain and definite, established by clear and convincing evidence
2. The party seeking enforcement performed pursuant to the agreement; and
3. Failure to enforce the agreement would work a fraud on the party seeking enforcement