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Flashcards in Execution and Revocation of Wills Deck (29)
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1

codicil

supplement to a will that modifies it

2

testamentary intent

-testator must have present intent that the instrument operates as his will
-parol evidence is admissible to show that an instrument was not meant to have any effect

3

When it is not clear whether an instrument was intended to be testamentary, testamentary intent will be found only if it is shown that the testator:

(i) intended to dispose of the property;
(ii) intended the disposition to occur only upon his death; and
(iii) intended that the instrument in question accomplish the disposition

4

conditional wills

-one that provides that it is to be operative only if a stated condition is satisfied
-A court might interpret what appears to be a condition as merely expressing the motive for making the will, and might give the will effect even if the condition does not occur
-Parol evidence not admissible to show meant to be conditional will

5

testamentary capacity

Testator must be at least 18 years old and of sound mind at the time he makes the will.

6

For execution of attested wills, most states require:

(i) Signed by testator (or by another at testator's direction and in her presence)
(ii) Two attesting witnesses
(iii) Testator signs will in presence of witnesses
(iv) Witnesses sign in testator's presence

7

Under the UPC, a will is valid if it is signed by two competent witnesses or

it is signed by a notary.

8

conscious presence test (majority)

The presence requirement is satisfied if each party was conscious of where the other parties were and what they were doing, and the act of signing took place within the general awareness and cognizance of the other parties.

9

scope of vision test (minority)

Presence requirement satisfied only if the person was in such close proximity that he could have seen the signing had he looked

10

interested witnesses

All states: will still valid, but bequest to interested witness may be void unless she would have taken a share if the will had not been probated
UPC: gifts to interested witnesses not purged

11

holographic will

-one that is entirely in the testator's handwriting and has no attesting witnesses
-must contain testator's signature, but it need not be at the end of the will
-recognized by UPC and majority of the states
-most states that recognize give effect to handwritten changes made by testator after will is completed

12

If changes are made to an attested will in the testator's handwriting and the jurisdiction recognizes holographic wills, what effect?

If the requirements are met, these changes are often construed as a valid holographic codicil.

13

With respect to personal property, the validity and effect of a will are determined by the law of

the testator's domicile at the time of death

14

Under the law of many states and the UPC, a will is admissible to probate in a jurisdiction if the will has been executed in accordance with the law of:

(i) that jurisdiction,
(ii) the state where the will was executed,
(iii) the testator's domicile at the time of the will's execution, or
(iv) the testator's domicile at death

15

integration

physical attachment, internal coherence of pages, or an orderly dispositional plan raise a presumption that the pages were present and intended to be part of the will when it was executed (can also be proved by testimony or other extrinsic evidence)

16

A codicil modifies a previously executed will and must itself

be executed with the same formalities.

17

doctrine of republication by codicil

a will is treated as having been executed on the date of the last codicil

18

Any addition, alteration, interlineation, or deletion made after the will has been signed and attested is ineffective to change the will, unless

the will is reexecuted with proper formalities (or the changes qualify as a holographic codicil where such codicils are recognized)

19

A document may be incorporated by reference into a will, provided:

(i) it is in existence at the time of execution;
(ii) it is sufficiently described in the will; and
(iii) the will manifests an intent to incorporate the document

20

A properly executed codicil usually incorporates by reference a prior defective will, thereby

validating the instrument.

21

acts of independent significance

A will may dispose of property by reference to acts and events, even though they are in the future and unattested, if they have significance apart from their effect on dispositions made by the will.

22

power of appointment

an authority granted to a person, enabling that person (the donee of the power) to designate, within the limits prescribed by the creator of the power, the persons who shall take the property and the manner in which they shall take it

23

general power of appointment

a power exercisable in favor of the donee himself, his estate, his creditors, or the creditors of his estate

24

special power of appointment

a power exercisable in favor of a limited class of appointees, which class does not include the donee, his estate, his creditors, or the creditors of his estate

25

pretermitted children statutes

if the testator fails to provide in his will for any child born or adopted after execution of the will, the child takes an intestate share

26

revocation by written instrument

-all or part of a will may be revoked or altered by a subsequent instrument executed with the same formalities of a will
-if the subsequent testamentary instrument does not expressly revoke the earlier will, the two are read together, with the later instrument revoking the earlier only to the extent of inconsistent provisions

27

revocation by physical act

-a will or codicil can be revoked by burning, tearing, canceling, or obliterating a material portion of the will with the intent to revoke
-intent must be concurrent with the act
-physical act may be performed by another if done at the testator's direction and in his presence

28

doctrine of dependent relative revocation

-applies when a testator revokes his will under the mistaken belief that another disposition of his property would be effective, and but for this mistaken belief, he would not have revoked the will

29

Integration of a will is the process of

embodying several sheets of paper or documents into a single, entire will, validated by a single action of execution.
-The will proponent must show that the pages were present when the will was executed and were intended by the testator to be a part of the will.
-The requirements of intent and presence are presumed when: there is a physical connection of the pages, there is an internal coherence by provisions running from one page to the next, or the pages, when read together, set out an orderly dispositional plan.
-Witness testimony and other extrinsic evidence are admissible to prove integration requirements.