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28 Cards in this Set
- Front
- Back
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What are the 3 types of wills?
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1) witnessed wills
2) holographic wills 3) nuncupative wills |
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What is the harmless error statute and when does it apply?
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- even if document wasn't executed in compliance with statutory requirements, it will still be effective if the PROPONENT can establish by CLEAR AND CONVINCING EVIDENCE that the decedent intended that the document constitutes:
1) testator's will 2) partial or complete revocation of will 3) codicil or modification in will 4) partial or complete modification **Applies to those who die after 2007** |
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The harmless error statute cannot excuse non-compliance regarding
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tesator's signature
2 exceptions: - 2 persons mistakenly sign each other's wills - person signs a self-proving affidavit and not the will itself |
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What is the SoL to petition under harmless error statute?
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1 year after decedent's death; all interested parties must be made a party
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What are the requirements for a witnessed will?
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- Age = 18+
- Signed by testator (OR someone at T's direction AND in his PRESENCE) - in PRESENCE of 2 witnesses (together) - signed by witnesses (witnesses don't need to be together when they sign) |
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Can harmless error statute save a will that violates the presence requirements?
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Yes, only after 2007; must prove by clear and convincing evidence
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Can the witnesses be interested (receive more under will than would have received under intestate)?
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Yes
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What are codicils?
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Additions to will; subject to same requirements of witnessed or holographic wills
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Can the testator receive assistance writing his name?
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Yes, and can be illegible as long as intended to be a signature
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Does VA have a publication requirement?
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No, doesn't matter if witness doesn't know what she's signing is a will
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What are the requirements of a holographic will?
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1) handwritten
2) signed by testator 3) T's handwriting proved by 2 DISINTERESTED persons 4) "Death talk" showing intention for it to be a wil |
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Where must the signature be on a holographic will?
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Anywhere!
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Can the testator's name at the beginning of a will be used to fulfill the signature requirement?
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Yes! based on 1989 case law, name on top OK as long as rest of document shows intention of finality of instrument
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Is a list of instructions to an attorney a holographic will (ex. please change my will to include...)?
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No, issue of whether the testator meant the letter to be a final act
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What is the only issue at a probate hearing?
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Whether or not something is a will
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Most probates are
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Ex parte -- no notice to interested parties required
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What is inter partes probate?
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full judicial proceeding with notice to interested parties
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If a will is selfproved via affidavit acknowledged by testator and sworn by witnesses before notary public), there is no need
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to call attesting witnesses
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A sworn statement is accepted as if it had been given
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ore tenus (oral testimony before the court)
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What is the SoL for interested parties to challenge a will after it is admitted to probate?
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- 6 months to appeal to circuit court from ORDER by CLERK/DEPUTY
- 1 year to file bill of equity to impeach/establish will already filed with the court --> trial de novo |
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Is there a time limit on when a will must be offered for probate?
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No
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A BFP of real property from an heir or beneficiary is protected until the will devising such property is
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probated within 1 year after decedent's death
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What is the testimonial requirement for a witnessed will?
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testimony of ONE attesting witness (present when testator signed); OK if interested
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What is the testimonial requirement for a holographic will?
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testimony of at least TWO DISINTERESTED witnesses; testifying that the will was in the handwriting of the testator
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For any will after 2007
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remember to apply the harmless error statute! Clear and convincing evidence that it was intended to be a valid will (despite any deficiency or problems of witness recollection)
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What is an ancillary probate?
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Must file ancillary papers in location of real property in order for that property to pass. Ex. T dies in ME and leaves farm in VA to O. Personal representative must begin probate in ME but file ancillary papers in VA in order for land to pass to O.
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What are the requirements of a self-proved will?
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1) testator acknowledges will
2) witnesses acknowledge will 3) it's before a notary / gets notarized |
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What is the effect of a self-proved will?
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Allows probate of will as properly executed; can't be challenged for violating any formalities
*doesn't matter if notary forgets to affix seal |
