Wills: Formalities and Forms

Question 1

Subscription

Answer 1

signature at the end of a will

Question 2

publication

Answer 2

Testator declaring his will in front of witnesses

Question 3

5 Functions of will formalities

Answer 3

1. evidentiary
2. ritual
3. cautionary
4. protective
5. channeling

Question 4

Strict compliance

Answer 4

a will must exactly meet the requirements of the will formalities, or the will will not be valid

Question 5

Meaning of ‘presence’

Answer 5

line of sight- testator was capable of seeing witnesses sign the will

conscious presence test- the testator was generally conscious of what was going on and the witnesses signature

UPC 2-502- no requirement that the witnesses have to sign in the testator’s presence, rather, the testator must be consciously present

Question 6

Will

Answer 6

a testamentary instrument created by the testator to further his or her wishes after death. There is a presumption that it is VALID, but this is rebuttable

Question 7

What law governs a will

Answer 7

the state in which the decedent was domiciled governs the will

Question 8

Substantial compliance doctrine

Answer 8

the will met the formalities of the wills act substantially enough and the intent of the testator is conveyed

Question 9

UPC 2-503. Harmless error rule

Answer 9

essentially, the writing of the will will be treated as if it is in compliance with the wills formalities act if it establishes by clear and convincing evidence that it is intended to be the testator’s will

Question 10

Witnesses

Answer 10

the individuals that observe a testator sign his will and sign to affirm that it is the testator’s will and he wasn’t forced into the will

Question 11

Holographic will

Answer 11

a handwritten will

In new york, they holographic will is only available to military personnel

Question 12

what does ‘ambulatory’ mean

Answer 12

the will is subject to revocation and modification by the testator at any time

Question 13

3 primary ways to revoke a will

Answer 13

1. a writing executed within the rules of the Wills formalities act
2. a physical act, i.e. destroying, obliterating, burning
3. create a new will wholly inconsistent with the former

Question 14

interested witness

Answer 14

a witness that has in beneficiary interest in the testator’s estate

Question 15

dependent relative revocation

Answer 15

revocation of a will will be disregarded if the testator only revoked the original will under the mistaken belief of law or fact the the new one would be valid

Question 16

can an old will be revived by revoking the new one?

Answer 16

No. in order to revive an old will the testator must:

1. create a writing that declares the old will as the one the testator wants to operate
2. re-execute and republish the will
3. create a codicil that incorporates by reference the old will

Question 17

What does a divorce do to a will

Answer 17

a divorce voids the provisions for the spouse

Question 18

integration

Answer 18

all papers at the time of execution and intended to be part of the will are treated as such even if the papers are not all in accordance with the will formalities act

Question 19

4 parts of testamentary capacity

Answer 19

1. know what you are doing
2. know what you have in your estate
3. know how you are disposing of your estate
   4 be able to articulate all of this

Question 20

insane delusion

Answer 20

a false sense of reality that is adhered to against all reason and affects testamentary capacity and materially affects the testator’s decision in the will

Question 21

undue influence

Answer 21

overreaching by a wrongdoer that takes advantage of a relative inferiority

Pay close attention to:

1. confidential relationships
2. heavy involvement of the suspected overreacher
3. major discrepancies between older wills and new one

Question 22

Fraud

Answer 22

wrongdoer knowingly misrepresents the facts upon which a testator makes their will

Question 23

Fraud in the execution

Answer 23

when a person knowingly or recklessly misrepresents the contents or character of the document signed by the testator

Question 24

fraud in the inducement

Answer 24

the testator was intentionally misled by a fact that cause him to make a different devise than he otherwise would have

Question 25

Duress

Answer 25

when the testator’s will is subjected to the will of the wrong doer

Question 26

dead mans statute

Answer 26

cant use a dead man’s oral statements to support a claim against his estate

Question 27

will contest

Answer 27

where it is conceded that the will is in accordance with the formalities, but the it is not a product of the testator’s own true volition