Execution of Wills Flashcards
What is the requirement for formality w/ regards to codicils?
They must be executed with the same formality that the will is executed in.
Can a formal will be amended by a holographic codicil?
Yes. Just as a holographic will can be amended by a formal codicil.
What is the form of signature required?
Signor must indicate the testator’s desire to sign.
Is capacity required for a will?
yes, the testator must be at least 18 and of sound mind.
What is the common law rule about formalities?
Common law is very strict about formalities and any failure to follow will result in invalidity
UPC/Minority View - Substantial compliance will suffice if there is clear and convincing evidence that the decedent intended the document to be his will.
What happens when a witness has a direct financial interest in the will?
Common Law - the interested witness was not competent
Purge Theory - witness cannot receive anything greater than what the witness would receive in intestate succession.
UPC no longer purges interested gifts.
Does a holographic will need to be witnessed?
no.
What amount of the writing needs to be in testator’s hand writing?
Some - any markings not in the testator’s handwriting will invalidate the will.
UPC - the material provisions must be in the testator’s handwriting.
What is the primary rule of holographic wills?
There must be intent - UPC allows us to look outside the contents of the will for intent.
What are the requirements for a witnesses’ signature in most jurisdiction?
The testator must sign or acknowledge the will in the presence of the witnesses and the witnesses must sign in the presence of the testator.
What are the rules for the presence of the witness?
Conscious presence - (modern approach) - witness or testator must be aware that the act is being performed.
Line of Sight - (traditional approach) - witness and the testor must observe or have the opportunity to observe the signing of the will.
When do witnesses need to sign the will?
Under the UPC within a reasonable time of the original signature.
When does UPC adopt the conscious presence test?
Where the will is signed by another on behalf of the testator.
Does a holographic will need to be signed?
yes.
What is the rule for the location of the signature?
UPC - signature can be located on any part of the will but anything below the signature is not invalid.
In some states the signature must be at the end of the document.
