Will Execution Formalities

Question 1

What are the UPC factors for a valid will?

Answer 1

A will must be:

1. In writing;
2. Signed by the testator; AND
3. Either (a) signed by at least two individuals within a reasonable time after witnessing the signing of the will OR (b) notarized

Question 2

All wills require these four basic formalities

Answer 2

1. Testamentary capacity (Testator age 18+ and of sound mind)
2. Testamentary intent
3. Writing
4. Signed by testator

Question 3

Formal attested wills require:

Answer 3

1. Testamentary capacity (Testator age 18+ and of sound mind)
2. Testamentary intent
3. Writing
4. Signed by testator

AND:

5. Two attesting witnesses
6. Testator must acknowledge will or signature in witnesses’ presence
7. Witnesses must sign in testator’s presence

Question 4

What happens if a witness is also a beneficiary of the will?

Answer 4

The will is valid but the gift to the interested witness is purged UNLESS:

1. Witness is supernumerary
2. Witness would take without the will (takes lesser gift)

UPC: (minority view) interested witness can keep the gift

Question 5

What is the UPC harmless error rule?

Answer 5

Defectively executed will can be given effect if there is clear and convincing evidence that the testator intended it to be a will.

Question 6

What is a holographic will?

Answer 6

Entirely in the testator’s handwriting and no attesting witnesses

Question 7

What are the requirements for a holographic will?

Answer 7

1. Testamentary intent
2. Testamentary capacity
3. Writing
4. Signed by testator
5. Must be in testator’s handwriting
6. Witness not needed

Question 8

What is required to satisfy the requirement that the will be signed in the testator’s “presence”?

Answer 8

Majority: signed in the testator’s line of sight.

UPC/Minority: signed within the range of the testator’s senses.

Question 9

What does disinterested witness mean?

Answer 9

Individuals who are not receiving a benefit under the will

Question 10

What are the two exceptions in which a will remains valid despite being witnessed by an interested witness?

Answer 10

1. If interested witness is an heir (any gift to that witness is reduced to their intestate share)
2. If another disinterested witness was present so that there were still a total two disinterested witnesses

Question 11

What is a codicil?

Answer 11

Instrument made after a will is executed that modifies, amends, or revokes a will.

Question 12

Does a codicil require the same formalities as a will to be valid?

Answer 12

Yes

Question 13

What does a codicil do?

Answer 13

Republishes the will, meaning courts will consider the original will to have been executed on the same date as the codicil

Question 14

Can a codicil republish an invalid will?

Answer 14

No (most courts); however, a validly executed codicil will cure any interested witnesses issues with the original will (as long as the codicil is witnessed by requisite number of disinterested witnesses)

Question 15

What can a valid holographic codicil accomplish?

Answer 15

Revokes any earlier valid will to the extent that the original will conflicts with the codicil

Question 16

What happens to a codicil if a will is revoked?

Answer 16

The codicil is also revoked

Question 17

What happens to the original will if a codicil is revoked?

Answer 17

Only the codicil is revoked, not the original will