Validity Of Wills

Front 1

What is the 7 Point Test required for a Valid will?

Back 1

1. Must be 18 years old
2. Signed by the testator (person making the will) or by someone at the testator’s direction and in her presence;
3. Testator's signature must be at the end thereof
4. Testator must sign the will or acknowledge his earlier signature in the presence of each witness.
5. Testator must "publish" the will
6. Must be at least TWO attesting witnesses; AND
7. The execution ceremony must be complete in 30 days (starts running when the first witness signs)

Front 2

What THREE things are required when the testator is signed by another person?

Back 2

1. The other person (proxy) must sign their name;
2. The proxy can't be counted as the attesting witness; AND
3. Proxy must affix her address (BUT failure to affix does not invalidate the Will).

Front 3

What does it mean that the testator must publish the will?

Back 3

Publication requires the testator to communicate to the witnesses that they are witnessing a Will (and not some other legal document), by declaring the document to be her “Last Will and Testament”

Front 4

When are the TWO ways/times a witness can attest a will?

Back 4

1. When the testator signed the will; OR
2. When the testator acknowledged his signature to the witness.
- If the testator signs after the witness does (even in the witness' presence) the will is denied probate.

Front 5

Do the witnesses have to sign in the presence of the other witnesses or testator?

Back 5

NO, just has to be after the testator signed the will

Front 6

When does the clock start to run for the execution ceremony?

Back 6

When the first witness signs.

Front 7

What happens when the signature is not at the end of the will?

Back 7

- Still probatable, but the words following the signature are not given effect.

Front 8

When will a signature not at the end of the will make it invalid?

Back 8

An entire Will is declared invalid if the matter following the signature is so material that giving effect to that above the signature and not giving effect to that below the signature would defeat the testator’s intention.

Front 9

What is the effect of a witness signing the will before the testator but in a contemporaneous ceremony?

Back 9

Not a problem as long as the ceremony is contemporaneous.

Front 10

Does it matter that the testator's hand was held by someone else when they signed?

Back 10

No, as long as the testator's act was voluntary

Front 11

Does it matter that a signature is not legible?

Back 11

Not a problem. Any mark intended as Testator's signature is ok. Even an x is sufficient

Front 12

Does it matter that the testator does not sign in the presence of the witness?

Back 12

- No, as long as he acknowledged the earlier signature as his to the witness.

Front 13

When will only one witness be ok to prove that a will was duly executed? (4)

Back 13

- if the other witness
1. is dead,
2. absent from the state,
3. incompetent or
4. cannot with due diligence be found.

Front 14

What does the will proponent have to prove if none of the witnesses can testify?

Back 14

The Will proponent must prove the signature of both the testator and one witness.

Front 15

What is required to show due execution when the will is not self-proved?

Back 15

Both attesting witnesses must testify as to the facts necessary to show due execution.

Front 16

What is an attestation clause?

Back 16

- A clause that appears below the testator’s signature line and above the witnesses’ signature lines, and recites all the elements of due execution

Front 17

What is the probative value of an attestation clause?

Back 17

- The clause is prima facie evidence of the facts presented.
- Not a substitute for live testimomy - the Will proponent must still call the witnesses to testify or prove their signatures

Front 18

What are the TWO main reasons that someone would want an Attestation clause?

Back 18

1. If the witness has a bad memory: “Probate of a Will does not turn on the memory of attesting witnesses.”
2. If the witness is hostile: e.g., If the witness recalls signing a Power of Attorney or some other document, the Attestation Clause can be used to rebut the witness’ evidence.

Front 19

What is a self proving affidavit?

Back 19

- Witnesses sign a sworn statement in the presence of an attorney that recites all the statements that they would make if they were called to testify in court.

Front 20

What is the effect of a self proving affidavit?

Back 20

- It is a substitute for live testimony, so the Will proponent does not have to call any witnesses.

Front 21

When can a self proving affidavit be signed?

Back 21

- Any time after the will is executed

Front 22

What is the general rule for an interested witness?

Back 22

- The will is not affected if a beneficiary is also an attesting witness, but the bequest to the witness is void.

Front 23

When are the TWO times the bequest to an interested witness will not be void?

Back 23

1. Supernumerary rule - there were two other disinterested witnesses
2. The interested witness would be an intestate distributee if the testator died without a will.

Front 24

What happens if the interested witness would be an intestate distributee?

Back 24

Apply the "whichever is least" rule: They take the lesser of:
1. The bequest in the will; OR
2. Their intestate share.

Front 25

What are the THREE ways will a foreign (out of state) will be admissible to probate in NY?

Back 25

It was validly executed under:
1. The law of the state where the Will was EXECUTED, regardless of the testator’s domicile at that time; OR
b. New York law; OR
c. The law of the state where the testator was DOMICILED, either when the Will was executed or at death.

Front 26

What is a holographic will?

Back 26

A will that is that is entirely in the testator's handwriting that is signed but NOT WITNESSED.
- VOID IN NY

Front 27

What is a nuncupative will?

Back 27

- An oral will (like a video)
- VOID in NY

Front 28

When are the TWO times a holographic or nuncupative will is valid?

Back 28

1. for members of the armed forces during declared or
undeclared war (but void one year after discharge); AND 2. mariners at sea (but void three years after discharge)

Front 29

When will a lawyer be liable for wills malpractice?

Back 29

- Only to the estate if they make a mistake
- NEVER to the beneficiaries.