Module 3: Will Formalities

Question 1

Policy reasons for will formalities in execution

Answer 1

ritual
evidentiary
protective
safe harbor or channeling

Question 2

General formalities required in will execution

Answer 2

writing
signature (possible subscription)
attestation (witnesses)

Question 3

Witness requirements for valid execution in TX

Answer 3

3 witnesses
Sign in the presence of the testator
Must be 14 or older

Question 4

What is a signature?

Answer 4

Anything the signer intends to be a signature
- an X
- a nickname
- Mom or Dad as a signature

Question 5

Requirements to be a witness to a will

Answer 5

age
mental competence
disinterested in disposition

Question 6

Approaches to interested witnesses

Answer 6

Common Law: Will invalid

Majority view (including TX): purging statutes

Modern trend/UPC: interest irrelevant

Question 7

Texas Purging Statute for Interested Witness

Answer 7

Excess amount rule

AND

permits interested witness to take fully if their testimony about the will execution can be cooberated by some other disinterested and credible person

Question 8

Curative Doctrines in Will Errors

Answer 8

Substantial Compliance Doctrine
Dispensing Power (new under UPC)

Question 9

Substantial Compliance Doctrine

Answer 9

provides relief from strict formalities where the functions and purposes of will formalities are still met

Question 10

Dispensing Power

Answer 10

Court may dispense with any formality so long as remaining adherent to testator intent

Question 11

Texas Dispensing Power

Answer 11

a personal representative may petition the court for dispensing power

Question 12

Court may revise instructions to personal representative for these certain purposes:

Answer 12

1) efficiency
2) tax benefits
3) qualify beneficiary for government benefits
4) correct scrivener’s error
5) may modify to testator’s probable intent (only of clear and convincing evidence of testator intent)

Question 13

Validity of Conditional Wills

Answer 13

Compare state of mind of testator rather than condition of the will

Question 14

Holographic will

Answer 14

will written wholly in testator’s handwriting and signed and dated by the testator

Question 15

Issues with Holographic wills

Answer 15

• date
• signature (what constitutes a signature? where is it on the document?)
• testamentary intent
• completely in testator handwriting

Question 16

Methods of Will Revocation

Answer 16

1) Physical Act (burn, tear, destroy, cancel, mutilate, obliterate)
2) Subsequent Instrument (express or implied)
3) Operation of Law/Change of Circumstance
4) Proxy

Question 17

Will revocation by physical act

Answer 17

burn, tear, destroy, cancel, mutilate, obliterate
all states allow
lay persons most likely to use this method
key is intent to revoke, not accident harming
form of physical revocation must be permitted in statute

Question 18

Partial revocation by physical act

Answer 18

Not allowed at common law (Texas view)
Modern trend is permitted

Question 19

Revocation by express subsequent instrument

Answer 19

Preferred method
subsequent writing (codicil, new will)
normally same formalities as for a will
would include holographs if permitted in jurisdiction

Question 20

Revocation by implied subsequent instrument

Answer 20

When there are inconsistent provision in later and the court tries to reconcile the two

Question 21

Revocation by Operation of Law (Change of Circumstance)

Answer 21

• Divorce: majority revokes provisions in favor spouse and relatives of an ex-spouse
• marriage
• birth of child

Question 22

Revocation by Proxy

Answer 22

UPC and majority allow when proxy alters in testator’s presence and at their direction

Question 23

dependent relative revocation

Answer 23

When will #2 revokes will #1 but has a mistake and is invalid, the rule of intent presumes that the testator would prefer the prior will to intestacy

ignore will #1 if:
1) there is an alternative disposition
2) the mistake is recited in the revoking instruments

Question 24

Revival of will

Answer 24

When will #2 is revoked but there is no new will made, the estate falls back to will #1 unless it was previously explicitly revoked

common law: yes, automatic revival (minority)
majority views:
- modern trend/UPC: intent (presume no revival, but may rebut with extrinsic evidence of intent)
- revival only if no express revocation in will #2
- no revival (TX), so must execute new will to revive

Question 25

Codicil

Answer 25

a legal document that modifies or amends an existing will without requiring the testator to make an entirely new will

Question 26

Will components

Answer 26

1) integration 2) incorporation by reference 3) acts of independent significance 4) republication by codicil

Question 27

Will integration

Answer 27

presume that the pages of the will go together and form one document

Question 28

Will incorporation by reference

Answer 28

document is in existence at the time the will is executed is executed is clearly identified by the will with a clear intent to incorporate expressed

Question 29

Will acts of independent significance

Answer 29

aka fact doctrine or doctrine of non testamentary facts facts or factors that are completely independent of the disposition of the estate BUT have an effect on some element of said distribution ex: a class gift that goes to members of a class which are controlled by a non testamentary fact (usually by the testator)

Question 30

Will republication by codicil

Answer 30

When a codicil effectively re-executes the entire will as if both the will and codicil are one document executed on the date of the codicil

Question 31

Contact to make a will

Answer 31

usually in caretaker situations in exchange for will inclusion - MUST meet statute of frauds (in writing) - if meets SOF, may be able to get specific performance - may use will itself OR refer to existence of contract in the will

Question 32

remedies for contract to make a will

Answer 32

1) quantum meruit (reasonable repayment of services rendered) 2) part performance - terms proven by clear and convincing evidence - actions unequivocally referable to existence of the contract - services of peculiar value to promisor, so money damages not available or sufficient

Question 33

Contact not to revoke a will

Answer 33

some joint or mutual wills devise situations where if one party revokes, will is invalid for all beneficiaries or where will cannot be revoked (unlikely to stand test in court, make a trust)