Execution

Front 1

5 statutory formalities for a will

+

Holographs

Back 1

For a will to be valid, testator must meet the formal requirements of due execution imposed by the statutes of the state. Most require it is to be signed by testator & 2 Ws, who sign at T's presence.

1. T must be 18; 2. Written; 3. Testamentary intent; 4. T signs (any mark/ have another sign at T's direction in T's presence); 5. 2 attesting Ws who W T's signing (or T acknowledges previous sig./will in front of Ws)

Holographs: UPC & majority of states also recognize holographic wills, requiring all or most of will be in T's handwriting (UPC allows typed but material provisions in T's handwriting) & signed by T; holographic wills have no attesting Ws.

Front 2

Codicil

Back 2

A later testamentary instrument that amends, alters, or modifies a previously executed will. A will is treated as having been executed (republished) on the date of the last validly executed codicil

Front 3

Signature + addition of clause

Back 3

Min: Wills must be signed at end so everything below is bad & above is good

Maj/UPC: No problem, all of will is valid

Uniform rule: Will is valid but if you add a clause after execution, that clause is not

Front 4

Intent

Back 4

UPC: court can validate defectively executed will if will proponent est. by C & C that T intended doc. to be his will; use EE to show

Front 5

Ws & tests of whether W really witnessed

Back 5

Attesting W who is also a B takes if: (i) is 1 of 3 attesting Ws, 2 of whom are disinterested, or (ii) would have taken if will had not been admitted to probate (been an heir if decedent died intestate or granted a bequest under an earlier will); W/B takes lesser of the legacy, intestate share or gift under earlier will

If W fulfills neither requirement, W's gift is void but will is valid; the fact an attesting W is also a B never affects the validity of the will

Whether W really witnessed:

Scope of Vision test: (min) - Ws must W T signing if they were to look

Conscience presence test: (UPC/ maj) - If conscience of where T is & what T is doing

Front 6

Execution of a will for RE where the will is not valid in the state where the RE sits

Back 6

CL & some: No, to control state X RE, must comply with state X law

UPC & majority: If the will is in the state for & complies with the law of:

1. Place of execution

2. Domicile at death

3. Domicile at execution

Front 7

Interested W

Back 7

Old rule (maj): interested W does not result in denying probate of will, but B-W loses legacy unless:

1. 2 dis-interesed attesting Ws or 2. W-B would be an heir if there were no will, in which case W takes the lesser of 1. amount in will or 2. intestate share

UPC/ modern: Interested W rule abolished - interested W is ok (though often raises undue influence issues)

Self-Proven wills: At time will is signed by T & attesting Ws (or sometime in in T's lifetime), T & Ws sign self-proving affidavit under oath before notary. Affidavit recites all elements of due execution. Formalities of execution (but not mentalcapacity, lack of fraud, undue influence, etc.) conclusively presumed

Front 8

K to make a will

Back 8

A K to make, not to make, or not to revoke a will is enforceable if promisee provided sufficient consideration for testator’s promise to name him as a will B. Without consideration, testator’s promise is merely a promise to make a gift in the future (unenforceable).

Although usual requirements of a valid K must be met, K is not a will & does not have to be executed w/ testamentary formalities. Likewise, it cannot be used to contest the probate of a will that is inconsistent w/ terms of the K. The properly executed will must be probated, but usual remedy is for court of equity to impose CT on appropriate Bs under the will. There generally is no remedy, however, during testator’s lifetime because a will is not effective (so no “breach”) until death.

Front 9

If will does not seem to be validly executed

Back 9

Analyze: Incorporation by reference, AOIS, Integration &Republication by Codicil