Execution of Wills: Capacity and Formalities

Question 1

Testamentary capacity element

Answer 1

Testator must be at least 18 years old and be of sound mind when the will is executed

Question 2

Sound mind requirement

Answer 2

Testator has ability to understand the:

(1) Nature, condition, and extent of their property,
(2) Nature of the disposition that they are making of their property, and
(3) Names of, and relationship to, the natural objects of their bounty (i.e., the beneficiaries)

Question 3

Deciding which formalities to respect

Answer 3

The requirements depend on the type of will:

(1) attested will,
(2) holographic will,
(3) contract to make a will,
(4) joint/mutual will, or
(5) a codicil to a will

Question 4

Attested will formalities

Answer 4

(1) In writing,
(2) Signed by testator, and
(3) witnessed or attested

Question 5

Presence exception to testator signature

Answer 5

Attested will may be signed by someone in testator’s presence who testator directs to do so

Question 6

Attested vs. witnessed

Answer 6

Attested = Acknowledged by the testator before a notary public

Witnessed = Signed by two witnesses

Question 7

Witness requirements

Answer 7

Each witness must have signed within a reasonable time of witnessing testator sign the will or hearing testator acknowledge that the signature on the will is their signature

Question 8

Interested witnesses

Answer 8

Under UPC an interested witness (i.e., beneficiaries under the will) does NOT invalidate the will or the gift to the interested witness

Question 9

Holographic will

Answer 9

Written by testator entirely in their own handwriting

Question 10

Formalities for valid holographic will

Answer 10

To be valid under UPC:
(1) Material portions in testator’s handwriting, and
(2) Testator must sign the will

Question 11

Formalities for contract to make will

Answer 11

A contract to dispose of a person’s property (real or personal) by will is valid under UPC

▪ A contract to make or not revoke a will, or to die intestate is established by:
(a) Provisions of decedent’s will stating material provisions of the contract,
(b) An express reference in decedent’s will to a contract and extrinsic evidence proving the terms of the contract, or
(c) A writing signed by decedent that evidences the contract

Question 12

Presumption for joint/mutual wills

Answer 12

In many states, when two people execute a single document as their joint will → presumption that the parties had contracted not to revoke except with consent of both

Presumption under UPC –> no presumption arises, revocable by either party

Question 13

Codicil

Answer 13

An instrument executed after a will that refers to another document, by adding
to, explaining, or deleting from a previous testamentary instrument

Question 14

Formalities of codicil

Answer 14

Must follow the same formalities as an attested will

Question 15

Treatment of codicil

Answer 15

A codicil republishes the will to which it refers → the original will is treated as
if it was written on the date the codicil was executed