Will Formation

Question 1

Requirements for a Valid Will

Answer 1

1. Legal Capacity
2. Testamentary Capacities
3. Testamentary Intent
4. Formalities Satisfied

Question 2

Legal Capacity for Valid Will

Answer 2

age 18 or older

Question 3

Testamentary Capacity for Valid Will

Answer 3

Must be a **Sound mind **such that:
1. Understand nature of the act
2. Know general nature and extent of property
3. Recognize natural objects of bounty
4. Circumstances did not render person without capacity

Question 4

Testamentary Intent

Answer 4

Intent that the very document being executed be a will

Question 5

Attested Will Formalities

Answer 5

1. Writing (on anything)
2. Signature = any mark with present intent to authenticate a will
3. Two Witnesses present at the same time

Question 6

Harmless Error Doctrine and Will Formation

Answer 6

**Substantial Compliance **by clear and convincing evidence with Will formalities suffices for the **formalities requirement **

Question 7

Requirements of the Witness Formality

Answer 7

1. Both competent at time of execution
2. Both present when testator signs or acknowledges
3. Signs during Testator’s lifetime (need not be in each other’s presence)
4. Knowledge that the document is a will
5. **Disinterested unless **(i) presumption of wrongful gift rebutted; (ii) there are two other disinterested Ws; or (iii) also an intestate heir

Question 8

Holograph Wills Requirements

Answer 8

1. Testamentary Capacity
2. Testamentary Intent
3. Signature
4. Material Provisions in T’s handwriting
   NO Ws NECESSARY

Question 9

Negative Wills

Answer 9

Statements of Disinheritance are ineffective

Question 10

Signature by Proxy

Answer 10

Must be in presence of Testator

Question 11

Methods of Revocation of Wills

Answer 11

1. Presumption of Revocation not Rebutted
2. By Physical Act
3. By Subsequent Will
4. By Operation of LAw

Question 12

Rebuttable Presumption of Revocation

Answer 12

1. Missing or Damaged Original

NOTE: a Will found in a normal place with no suspicious circumstances is presumed unrevoked

Question 13

Revocation by Subsequent Will

Answer 13

1. Express Revocation; or
2. Inconsistent Provisions in Latest Will –> revoked only as to inconsistent parts

Question 14

Revocation by Physical Act

Answer 14

1. Intent to revoke
2. Mental Capacity
3. Physical Act such as burning, tearing, canceling obliterating
4. IF Tearing: Must be torn through some material part

Question 15

Proxy Revocation

Answer 15

1. At testator’s request; and
2. In testator’s presence

Question 16

Partial Revocation by Physical Act

Answer 16

Only revocation of gift (not addition of gift) is allowed unless additional residue as byproduct

Question 17

Revocation by act where there are Duplicate Wills

Answer 17

Act against one is enough

Question 18

Issues regarding Revocation by Operation of Law

Answer 18

1. Omitted Spouse
2. Divorce
3. Pretermitted/Omitted Child

Question 19

Omitted Spouse

Answer 19

Keeps 1/2 CP plus takes intestate share unless:
1. Intentional omission
2. Provided for with non-probate transfer
3. Waived
4. Spouse was not a care custodian

Question 20

Divorce after Execution

Answer 20

Only a final divorce will revoke provisions in favor of former spouse –> passes as if ex predeceased unless:
1. will expressly provides otherwise; or
2. spouses remarry

Question 21

Pretermitted/Omitted Child

Answer 21

Where either (1) child born or adopted after will executed; (2) the child is unknown; or (3) child mistakenly believed deceased, that child **gets their intestate share **of testator’s estate shared pro rata by will beneficiaries unless
1. Intentional Exclusion
2. All or most of Estate left to Child’s Parents

Question 22

Revival of Wills

Answer 22

GENERAL RULE: A revoked will may be probated where the the revoking will was itself revoked by physical act.
1. **Dependent Relative Revocation (DRR): **Where T revokes his will on mistaken belieft that another disposition would be effective, and but for the mistake T would not have revoked the will, the original will is revived

2. Revocation of 2nd Will: Where Will 1 is valid and still in existence, Will 2 validly revokes Will 1, and Will 2 is revoked by physical act the court will look to T’s intent to determine if Will 1 is revived