The Last Will and Testament Chapter 5 The Last Will and Testament

Chapter Outcomes Describe the legal requirements for executing a will in your state Explain the methods of changing and revoking wills under the laws of your state Recognize possible grounds for contesting a will

Wills and Testaments Today’s law of wills, trusts, and estates is based on the feudal system Will: instrument that disposes of real property Testament: instrument that disposes of personal property Will and testament: instrument that disposes of both real and personal property

Wills and Testaments Gift of personal property Bequest or legacy: gift of personal property Legator: person who makes gift in a will Legatee: person to whom gift is given Bequeath: give personal property by will

Wills and Testaments Gift of real property Devise Devise: gift of real property Devisor: person who makes a gift of real property in a will Devisee: person to whom gift is given Devise States that adopted UPC: devise refers to both personal and real property

State Statutory Formalities Will requirements—capacity Legal capacity Age at which a person acquires capacity to make a valid will, usually 18 Testamentary capacity Sanity required for a person to make a will Sound mind Proponent of the will has burden of proving soundness of mind

State Statutory Formalities Will requirements—writing Wills must be in writing A few states allow nuncupative (oral) wills under certain circumstances Holographic will: will that is entirely in handwriting About half of the states recognize holographic wills as valid Audiotape recordings do not meet the requirements of a holographic will

State Statutory Formalities Execution of the will Signature Signed by testator or someone in testator’s presence who is directed to sign by testator May be any mark testator intends to be signature Most states do not require testator’s signature to be at the end of the will

State Statutory Formalities Execution of a will Witness Most states require two competent witnesses Attest: see the signature or take note mentally that signature exists as a fact Subscribe: write beneath Most courts hold that witnesses must both attest and subscribe

Changing and Revoking Wills Changing a will Codicil Separate instrument with new provisions that change the original will A properly executed codicil republishes the will An improperly executed codicil may invalidate a will Cross-out marks on wills cause confusion, invite contests, and can lead to costly litigation Given ease of word processors, STEP recommends writing new will instead of codicil

Revoking a Will Revocation The act of revoking or canceling a will Four methods to revoke will Burning, cancelling, tearing, obliterating Execute new will Subsequent marriage Divorce or dissolution of marriage

Joint and Mutual Wills Joint will One instrument that serves as the will for two or more persons Probated each time cotestator dies Not recommended

Joint and Mutual Wills Mutual will Separate will for each person but with identical reciprocal provisions for each Agreement that they will not change will after death of the other

Agreements to Devise or Bequeath Property Agreement to devise or bequeath Agreement to make a gift Must be in writing No undue influence or fraud

Grounds for Contesting a Will Will contest Did not meet all will requirements Standing: must have a beneficial interest in the will Fraud Undue influence