Chapter 4
The Will
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Learning Objectives
Understand the history of wills
Understand key statutory requirements for avalid will
Understand common ways a will can bechanged or revoked
Distinguish between a joint will and a mutualwill
Understand the key aspects of a will contest
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A Short History Of Wills
1200s England
real property only passed from father to eldest son
testaments were used to transfer personal property (as told to church)
1536: Statute of Uses
put restrictions on prior exceptions to strict rules on property distribution
1540: Statute of Wills
allowed many landowners to use a written will
1660: End of Feudalism
free distribution of real estate; church’s powers over personal property ends
Present
wills are used for real and personal property
wills are governed by state statutes
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General Requirements For A Valid Will
Testamentary Intent
“last will and testament” – form, language, and words
Testamentary Capacity
majority age, with certain exceptions & sound mind
Sound Mind
knowing the natural objects of one’s bounty
knowing the nature and extent of one’s property
knowing that one is making a will
being free from insane delusions at the time ofmaking the will
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Undue Influence
Inducement of the testator to write a willfavoring a particular beneficiary
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Holographic Will
Completely hand written; doesn’t requirewitness signatures
Only allowed in a few states
Why?
proof problems
fraud concerns
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Nuncupative Will
Oral will made during last moments of life, orduring military service in times of war
Only allowed for personal property
Requires witnesses
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Wills Must Be Signed
A properly executed will requires the testator’ssignature
Exceptions: “x,” or another person’s signaturefor the testator’s can suffice
Statutes direct where the will should be signed
whether at the end only, or on every page
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Wills Must Be Witnessed
A properly executed will requires at least twowitness signatures
Attesting: observing the testator sign the will
Subscribing: signing the will as a witness
Witnesses don’t have to know what is in thewill
Witnesses must be competent
Beneficiaries shouldn’t be witnesses
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Proving A Will’s Validity
Attesting Witness Testimony
the most cumbersome method
witnesses may have moved or died by the time ofthe testator’s death
Self-Proving Clause/Notary Affidavit
substitutes for the testimony of attesting witnesses
not required to make the will, itself, valid
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Changing A Will
Why?
It needs to be updated as the testator’s life and needs evolve
How?
Codicil: Must be executed just like a will
Accomplished by “incorporation by reference”
Cross-outs: Striking certain provisions and adding new ones
Can be dangerous to one’s legal health
Revocation: Physical act → ripping it to pieces
Operation of law → subsequent marriage/divorce
Subsequent writing → creating a new will
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Joint Wills vs. Mutual Wills
Joint Will
One will representing thewishes and bequests of twoor more testators
Bad idea!
Changing or revoking ajoint will requires bothtestators’ consent
Mutual Will
Separate, but reciprocalwills, with an agreement thateach will not be change
Thought to be a better optionfor spouses than a jointwill…
But, they still put a burdenon the surviving spouse, whomight later want to changehis or her will
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Will Contest
What is it?
lawsuit challenging the validity of a will
must be brought by one who has standing, such as adisinherited child
How to succeed in one → prove the following:
improper execution
lack of testamentary capacity
revocation
forgery
fraud, duress, or undue influence
How to avoid one
testator’s will could include “in terrorem clause,” whichforfeits bequests to any beneficiary challenging the will