Will Preparation

Front 1

What are the three core formalities of making an attested will?

Back 1

Writing, signature, and attestation.

Front 2

According to the UPC, what is required for a properly executed will? §2-502

Back 2

A will must be in writing, signed by T or in T's conscious presence and at T's directive, and either: signed by two individuals w/in reasonable time of signing of will or notary.

Holographic will is valid if the material portions are in the testator's handwriting and it's signed by T.

Extrinsic evidence can be used.

Front 3

What is the main function of the Wills Act?

Back 3

To enable a court to decide whether a purported will is authentic without the benefit of live testimony from the testator.

Front 4

What are other formal functions of the will?

Back 4

Evidentiary, ritual (or cautionary), protective, and channeling.

Front 5

How does the ritual/cautionary function help?

Back 5

Courts need to be convinced that the statements of the transferor were deliberately intended to effectuate a transfer, so the ceremony and formality of will executing is meant to impress a sense of that importance.

Front 6

What does the evidentiary function of will formalities do?

Back 6

It may increase the reliability of the proof presented to the court.

Front 7

What does the protective function do?

Back 7

Safeguards the T against undue influence or other forms of imposition- however it is difficult to justify under modern conditions.

Front 8

What does the channeling function do?

Back 8

It has both social and individual aspects. Compliance with the Wills Act formalities for executing witnessed wills results in considerable uniformity in organization, language, and content of most wills. So courts are seldom left to puzzle whether the document is actually a will.

Front 9

What is the strict compliance rule say?

Back 9

Under traditional law, a will must be in strict compliance with the formal requirements of the applicable Wills Act to be admitted to probate.

Front 10

What doctrine does In Re Groffman reinforce?

Back 10

Strict compliance: Groffman did not comply with the proper witness signing procedure so the will was found to be invalid.

Front 11

What is an attestation clause?

Back 11

Recites that the will was duly executed in accordance with the particulars of the applicable Wills Act. No state requires one, but such a clause gives rise to a rebuttable presumption of due execution.

In modern practice, the attestation clause has been augmented with a self-proving affidavit.

Front 12

What does 'presence' mean for purposes of will signing?

Back 12

1) Line of sight: in England and some states, this is satisfied only if the T is capable of seeing the wits in the act of signing. Not actually see but be able to see. Exception for blind T.

2) Conscious presence: in other states, wit is presence of the T if the T, through sight, hearing, or general consciousness of events, comprehends that the wit is in the act of signing. A test of mental apprehension.

3) UPC: dispenses altogether that wits sign in testator's presence.

Front 13

How can the signature requirement of a will be satisfied?

Back 13

Signing by the T with her full name at the end of the document will almost always suffice. Problems arise when signature takes a different form. A mark, cross, abbreviation, or nickname can be sufficient.

-Estate of McCabe: McCabe signed an 'X' because his hands were too shaky to sign properly.

-In re Young: the letter 'J' was sufficient because the testator was partially paralyzed.

-Taylor v. Holt: electronic signature was valid with two wits.

Front 14

Does the order of the signing matter?

Back 14

Yes, T must sign the will before the witnesses attest. However, if they sign as part of a single or continuous transaction, then the order is not critical.

In re Colling: Colling made a will a few days before his death, but one of the wits had to step out when Colling was signing. The court did not probate the will.

Front 15

What is subscription?

Back 15

The requirement adopted by a few states is that the T sign the will at the foot or end thereof.

Front 16

What happens when T writes additional things after the signature on the will?

Back 16

It depends. If done after T signed the will, the will would be admitted to probate but the line would be ineffective as a subsequent unexecuted codicil. If added before the T signed her name, the will would then not satisfy the subscription requirement.

Front 17

How long may the witness delay attestation without compromising the validity of the will?

Back 17

In NY, witnesses may attest within 30 days.

UPC: within a reasonable time, which could extend after T's death.

CA: requires the wits to sign during the tesator's lifetime, but also authorizes the harmless error rule to defective attestation.

Front 18

What is the meaning of 'writing'?

Back 18

The req of writing is easily satisfied when will is written or typed on paper. But a will need not be on paper. All that is required is a reasonably permanent record of the markings that make up the will.

Front 19

Is a video will valid?

Back 19

In the estate of Reed, dealing with a videotape, the court held no.

Front 20

Is a electronic will valid?

Back 20

Probably not under the writing requirements of an ordinary Wills Act, but maybe under the substantial compliance doctrine or the harmless error rule.

Nevada enacted a statute that allowed electronic wills, subject to strict requirements.

Front 21

In TX, who may execute a will?

Back 21

A person of sound mind has the right and power to make a last will and testament if, at the time the will is made, the person: is 18 years or older, is or has been married, or is a member of the military.

Front 22

In TX, what are the writing and attestation requirements?

Back 22

A will must be 1) in writing, 2) signed by the testator in person or another person on behalf of the testator in T's presence and under T's direction, and 3) attested by two or more credible wits who are at least 14 years of age and who subscribe their names to the will in their own handwriting in T's presence.

Front 23

What is the holographic wills exception?

Back 23

A will written wholly in the testator's handwriting is not required to be attested by subscribing witnesses.

Front 24

Do witnesses have to be disinterested?

Back 24

A substantial minority of states, following the UPC, do not require that any of the witnesses be disinterested.

Handful of states, like CA, have a middle ground in which devise to a witness triggers a rebuttable presumption of undue influence, duress, or fraud.

Front 25

What is the purging statute?

Back 25

An alleviation to to when an interested witness attested a will and thus the will could not be probated. A purging statute meant that any bequest to the interested witness would not take a devise, but the will would still be valid.

Front 26

What is the process of signing a self-proving aff?

Back 26

Before the notary public, the testator and the witness sign a self-proving aff, typed out at the end of the will, swearing that the will was duly executed, the notary signs the aff and attaches the required seal.

Front 27

What is the point of a self-proving aff?

Back 27

If the wits are dead or cannot be located or have moved far away.

Front 28

What does a self-proving aff do?

Back 28

Recites all the requirements of due execution have been

Front 29

What does the UPC authorize for a self-proving affidavit?

Back 29

§2-504: authorize two kinds of self-proving aff: a combined attestation clause and self proving aff, so that the testator and the wits sign their names only once; a one-step self-proving aff.

Authorizes a separate self-proving attestation to be affixed to a will already signed and attested. The aff must be signed by the T and wits in front of a notary after the T and wits have signed the will. Model ceremony in book assumes a two-step process.

Front 30

When can a self-proved will be contested?

Back 30

It may not be contested unless there is evid of fraud or forgery affecting the acknowledgment or aff.

Front 31

When is an attestation clause very useful?

Back 31

A witness with a bad memory, a hostile witness, when wits are dead or cannot be located.

Front 32

What is the TX law for a self-proving aff?

Back 32

TX authorizes a self-proving aff to be affixed to a will already signed and attested, an aff that must be signed by the T and wits in front of a notary public after the T has signed the will and the wits have signed the attestation clause.

If there is a self-proving aff, no further proof of the will's execution w/ the required formalities shall be necessary.