Will Execution

Question 1

Execution Formalities

Answer 1

Under the UPC, a will must be:
1) in writing
2) signed by the testator
3) and either: a) signed by at least two individuals OR b) notarized

Question 2

Valid Will Requirements

Answer 2

A valid will requires 1) a testator with capacity, 2) present testamentary intent, and 3) compliance with requisite formalities.

Question 3

Legal Capacity

Answer 3

18 years old & sound mind

Question 4

Testamentary Capacity

Answer 4

Testator must have capacity to understand:
1) nature of act
2) effect of what they are doing
3) nature and extent of their property
4) recognize relation to beneficiaries
5) be able to formulate an orderly scheme of disposition

Question 5

Testamentary Intent

Answer 5

Must have present intent the instrument operates as will. When unclear, must show:
1) intent to dispose of property
2) intent disposition occurs only on death
3) intent instrument was going to accomplish disposition

Question 6

Will Witness Signature

Answer 6

Majority View & UPC: will signed by a witness if signed within range of testator’s senses “conscious presence”

Minority View: will is signed by a witness if signed within testator’s line of sight

Question 7

Compliance with Formalities

Answer 7

Common Law: invalid if does not comply with ALL formalities

Some States: valid if substantially complied with requirements

UPC: harmless error

Question 8

UPC Harmless Error Will Formalities

Answer 8

An improperly executed will is valid if:
1) clear and convincing evidence
2) decedent intended writing to be his will

Question 9

Doctrine of Integration

Answer 9

A document will be integrated into will if testator:
1) intended it to be part of will, and
2) document was physically present at will’s execution

may be proven by extrinsic evidence or testimony

Question 10

Interested Witnesses

Common Law

Answer 10

Signing must be witnessed by two disinterested witnesses otherwise invalid.

(abolished)

Question 11

Interested Witnesses

Answer 11

A will signed with an interested witness is valid

but gift to interested witness is void

Question 12

Exception to Interested Witnesses Void Gift

Answer 12

Will be valid if:
a) interested witness is an heir and is a lesser share, or
b) another disinterested witness was present, so still total of two disinterested witnesses

Question 13

Codicil

Answer 13

A codicil is an instrument made after a will is executed that modifies, amends, or revokes a will

republishes the will, but not an invalid will

Question 14

Holographic Wills & Codicils

Answer 14

A holographic will is a handwritten will that is NOT witnessed.

Question 15

Incorporation by Reference

Answer 15

A document or writing may be incorporated in a will by reference if:
1) it was in existence at the time it was executed
2) it is sufficiently described in the will, and
3) testator intended to incorporate it

Question 16

UPC Incorporation by Reference

tangible personal property

Answer 16

Document bequeathing tangible personal property may be incorporated if:
1) it was signed by the testator, and
2) describes with reasonable certainty the items and the devisees

document is NOT required to be in existence at time of will execution

Question 17

Acts of Independent Significance

Answer 17

A court may use an act of indepedent significance to fill any gaps of a will.