Execution of wills

Question 1

requirements for a valid will

Answer 1

1) 18 years old
2) signed by testator)
3) 2 attesting witness (disinterested witness)
4) each witness must sign in TESTATORS presence
5) of sound mind

Question 2

can t direct another in her presence to sign for their signature of execution of will

Answer 2

yes

Question 3

things IL does NOT require for valid will

Answer 3

1) T sign at foot or end of will
2) witnesses know they are witnessing a will
3) T sign in witnesses’ presence
4) witnesses sign each others presence

Question 4

In IL do the witnesses need to know they are signing a will

Answer 4

NO

Question 5

does it matter that the 1 of the witness signed before T signed

Answer 5

NO

- Exact order of signing is not critical when the execution ceremony is CONTEMPORANEOUS TRANSACTION

Question 6

In IL do the witnesses have to sign in EACH OTHERS presence

Answer 6

no

Question 7

for execution of wills, when is the exact order of signatures not critical

Answer 7

when the execution ceremony is CONTEMPORANEOUS TRANSACTION

Question 8

what is the requirement that T’s siganture appear on will

Answer 8

any mark intended as T’s mark is sufficient and satisfies the signature requirement

Question 9

under the UPC and majority rule what is required for signing in “testators” presence

Answer 9

conscious presence test: not necessary that T should actually see the witnesses when they sign

Question 10

in IL what is required for signing in the “testators presence”

Answer 10

witnesses must be withing T’s LINE OF SIGHT
- T does not have to see W sign BUT W MUST BE W.I UNINTERRUPTED SCOPE OF T’S VISION when they sign, so that T could have seen them IF HE LOOKED

Question 11

can an attorney be held liable for negligent prep of will in minority of states

Answer 11

NO!

- b/c there is no privitiy of K

Question 12

in IL can an atty be held liable for negligent prep of will

Answer 12

YES, privity of K has been rejected as a defense and the atty’s duty also runs to INTENDED BENEFICIARIES of atty services

Question 13

does an interested W destroy a will

Answer 13

NOOOOO.

- Never destroys validity of will, only limits what interested W can get

Question 14

what if a W is an interested party

Answer 14

looses legacy (right to get)

Question 15

when does an intested W not lose its right to inherint

Answer 15

1) supernumrary rule (2 other disintersted W) OR
2) W would take share of estate, can take the lessor of
(a) bequest given by will or
(b) INTESTATE SHARE

Question 16

in the majority of states can an interested W be entitled to compensation for services as executor>

Answer 16

YES

-

Question 17

In IL can an interested W be entitled to compensation for services

Answer 17

NO COMPENSATION allowed if necessary witness of will

Question 18

does the noncompensation of interested W apply to bank or law firm?

Answer 18

NO.

Question 19

in the majority of states does an interested W statute void a legacy of a spouse

Answer 19

NO, most states only a bequest to the W herself triggers statute

Question 20

In IL does an interested W statute void a legacy of a spouse

Answer 20

YES. bequest to W spouse is VOID

Question 21

In IL are holographic wills allowed

Answer 21

NO. Must be signed by at least 2 attesting W’s

Question 22

exam tip for holographic will

Answer 22

1) discuss majority rule of handwritten rules then

2) discuss IL

Question 23

ex of conditional will

Answer 23

“if anything happens to me on my trip then to…”

Question 24

what to do if an example of conditional will

Answer 24

1) CONDITIONAL WILL: probate should be denied b/c condition did not occur
2) MOTIVE OR INDUCEMENT FOR MAKING A WILL: simply motive to make will in first place
- Argue both sides

Question 25

what is the doctrine of integration

Answer 25

all pages that were intended to be part of a will and were present at the time of testator an witness signed the last page comprise the D’s will.
- Th pages do not have t be stapled together, an the T and W’s need not sign each page.

Question 26

presumption of integration arises when

Answer 26

there is an internal coherence by provisions running from 1 page to the next.

Question 27

when is influence not undue

Answer 27

unless the free will of the T is destroyed and the resulting testamentary disposition reflects the desires, not of the testator, but of the party exerting undue influence.

Question 28

what does finding of fraud require

Answer 28

showing that the T has been willfully deceived as to the character or content of the instrument, as to the extrinisic facts that would induce the will or a particular disposition, or with respect to facts material to a disposition.

Question 29

when does fraud in the execution occur

Answer 29

when there is a misrepresentation as to the nature fo the contents of the instruments

Question 30

when does fraud in the inducement occur

Answer 30

when the T intends to execute the instrument as his will and to include the particular contents of that instrument, but he is fraudulently induced into making this will, or some particular gift therein, by misrepresentations as to facts which influence his motivation

Question 31

does UPC and majority of states allow holographic wills

Answer 31

yes

Question 32

UPC/ Majority: for when holographic will is valid

Answer 32

where all or most of the will was in the testators handwriting and signed by T

Question 33

what is a codicil

Answer 33

amends, alters, or modifies a previously executed will

Question 34

when is a will that is republised

Answer 34

a will as having been executed (republished) on the date of the last validly executed codicil. To be republished the first will must have been validly executed

Question 35

can a will that was not properly executed be republished

Answer 35

NO. to be republished the first will must have been validly executed.

Question 36

Is a validly executed codicil viewed as impliedly incorporating a defective will by reference

Answer 36

yes, thus validating a will.

Question 37

Can an invalid will be republished

Answer 37

No.

Question 38

requirements for incorporation by reference

Answer 38

1) document is in existence at time of execution
2) reasonably describe the document
3) will manifests intent to incorporate the document.

Question 39

what 2 things to thing of when a former will was not properly executed but new writing occurs

Answer 39

1) republished (a will that was not properly executed cannot be republished)

3) a valid executed codicil can make a will valid if executed on the will and proper.

Question 40

For holographic wills signature requirement

Answer 40

many states consider handwritten name in the body of will to be valid signature

Question 41

Holographic wills: do many states consider handwritten name in the body of the will to be a valid signature

Answer 41

YES

Question 42

what is doctrine of integration

Answer 42

the process of embodying several sheets of paper or documents into a single entire will, validated by a single action of execution

Question 43

What is required for doctrine of integration

Answer 43

all of the pages that were intended to be part of will and were present at the time of testator and witness signed the last page comprise the decedent’s will.
- The pages do not need to be stapled together and the witnesses do not need to sign every page

Question 44

for integration, do the pages need to be stapled and does each witness need to sign each page

Answer 44

NO
- a presumption of integration arises when there is an internal coherence by provisions running from one page to the next.