Wills, Trust And Estates - Formalities And Forms

Front 1

Four functions of formalities?

Back 1

i. Ritual (AKA cautionary) function: if the ceremony of formalities is performed, the court is justified in concluding that the will was intended to be operative.

ii. Evidentiary function: formalities provide adequate evidence to the court of the details of the transfer.

iii. Protective function: formalities protect the testator against undue influence or other imposition.

iv. Channeling function: it is easier for the court to determine a person’s will at death if they are channeled into a will with standardized formalities.

Front 2

Formalities required under the Wills Act (1837)?

Back 2

1. writing,
2. subscription (signature by the testator), and
3. attestation (witnesses’ signatures). (Requirements of execution vary by state.)

4. Some states have some other required formalities, such as publication (the donor saying "this is my will" to the witnesses before anyone signs), or having the donor's signature at the foot of the document

Front 3

Requirements of Witnesses?

Back 3

a. At least two witnesses are required; a few states require three.

b. Other requirements a state may have:

1. Witnesses must see testator sign

2. Witnesses must be present when testator signs

3. Witnesses must be present for each other’s signature

Front 4

Strict Compliance with Formalities,
UPC § 2-502(a)?

Back 4

To be valid, a will must be in writing, signed by the testator (or in the testator’s name by another in the testator’s conscious presence and by testator’s direction), and signed by two witnesses within a reasonable time of witnessing either the testator signing or the testator acknowledging that a signature is his/hers.

Front 5

Strict Compliance with Formalities,
UPC § 2-504?

Back 5

A will may be simultaneously executed, attested, and made self-proved by acknowledgement thereof by the testator and affidavits of the witnesses

Front 6

Strict Compliance with Formalities,
UPC § 2-505?

Back 6

Any person generally competent to be a witness may witness a will, and a witness being interested in the will does not invalidate the will or any provision in it