Execution of Wills Flashcards
(10 cards)
What are the statutory formalities for a will?
- Testator must be 18 or older;
- Will must be written;
- with the requisite testimentary intent;
- Testator must sign the will (can be any marking intended to be a signature);
- Two attesting witnesses witness T’s signing.
Under the UPC, can a notary replace the requirement for two witnesses?
Yes.
Under the UPC, what is required for a court to validate a defective will?
A court can validate a defectively executed will if the will proponent establishes by clear and convincing evidence that the testator intended the document to be his will.
What happens if a portion of the will follows the testators signature?
Minority Rule: Everything above signature is valid. However, everything below signature is invalid.
UPC and Majority Rule: No requirement for signature at the end. As long as signature appears then the will is validly signed.
Is a will valid if a clause is added after the will is signed?
The will is valid, however the added clause is not.
Are holographic wills (handwritten wills) valid?
Half of States: Holographic wills are not allowed unless there are still two witnesses present to attest to the will.
UPC and other half of states: Valid if material provisions are in testators own handwriting and the will is signed by here. Material provisions are those that identify the property and the beneficiaries to receive said property.
Hypo: T is in hospital bed with contagious disease when the will is executed. Two witnesses stand in the doorway behind a screen that hides T from view. The T states: “This is my will. It looks OK, where do I sign?” T then signs and hands the will to the doctor who brings it out to the witnesses, who then sign. Is the will validly executed?
Minority Rule: The Scope of Vision Test - Only valid if the witnesses could have seen the T sign the will had they looked.
UPC and Majority Rule: The Conscious Presence Test - Witnessed T signing if they were conscious of where T was and what he was doing.
Hypo: T is domiciled in PA and owns real estate in X. While on vacation in FL, T executes a will that meets the requirements for a valid will in PA but not in X. later T dies after having changed his domicile to NY. Is the will valid for purposes of the disposition of the state X real estate?
Common law and very small minority: No, to control state X property, it must fulfill state X law.
UPC and majority: yes, this will be given effect if it fits within 1 or more of the following tests:
1. Fulfills the law of the place executed;
2. Fulfills the law of the domicile at death;
3. Fulfills the law of the domicile at execution.
Hypo: “I give to my faithful nurse Nell the sum of $30,000.” Nell is one of the two attesting witnesses to the will. Is the will admissible to probate?
Majority Rule: Interested witness situation does not result in denial of probate of will, but beneficiary-witness loses legacy unless:
- there were two disinterested attesting witnesses; or
- witness-beneficiary would be an heir if there were no will, in which case she takes the lesser of (i) amount given in will, or (ii) intestate share.
UPC and modern trend: Abolished the above rule. A will or any provision thereof is not invalid because the will is signed by an interested party.
What is a self-proved will?
At the time will is signed by T and attesting witnesses, T and witnesses sign a self-proving affidavit under oath before a notary public. This affidavit recites all elements of due execution. Formalities of execution are conclusively presumed.
