Validity of Wills

Question 1

Requirements of a duly executed will

Answer 1

(1) must be 18 years old
(2) signed by testator (or by someone at the testator’s direction and in her presence
- proxy must also sign name, & can’t count as witness)
(3) signature at end
(4) T must sign or acknowledge in each witnesses presence
(5) T must “publish” will (communicate to witnesses that they are witnessing a will; “last will and testament”)
(6) Must be at least 2 attesting witnesses; AND
(7) execution ceremony must be completed within 30 days which starts to run when the 1st witness signs

Question 2

Burden of Proof- Due Execution

Answer 2

Will proponent has the burden of proving due execution

• if one witness is unavailable: 1 witness ok
• if both unavailable: proponent must prove the signature of both the T and 1 witness
• if will is not self-proved: both attesting witnesses must testify as to the facts necessary to show due execution

Question 3

Attestation Clause

Answer 3

Appears below signature line and above the witnesses signatures

• prima facie evidence for the facts presented
• no substitute for live testimony

Question 4

Self-Proving Affidavit

Answer 4

attached to the back of the will
-witnesses sign sworn statement reciting all the facts

-substitute for live testimony unless interested party objects

Question 5

Bequest to Witness

Answer 5

Invalid UNLESS

• supernumerary rule: at least 3 witnesses & 2 were disinterested: OR
• Intestate witness would be an intestate distributee if T died without a will (Witness gets whichever is least from will or intestacy)

Question 6

Foreign Will Act

Answer 6

A will is admissible to probate in NY if it was validly executed under: (END)

• the law of the state where it was Executed;
• New York Law; OR
• law of the state where the testator was Domiciled, either when the will was executed or at death.

Question 7

Holographic and Nuncupative Wills

Answer 7

Not witnessed, handwritten wills or oral wills- both VOID

exception- both are valid for members of the armed forces during war (void some time after discharge)

Can be ok under Foreign Wills Act

Question 8

Lawyer Malpractice

Answer 8

• can’t be sued by beneficiaries (no privity)

- can be sued by testator to diminution of estate value