Chapter 4 The Will

Wills, Trusts, and Estates Administration, 3e Herskowitz 2 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Learning Objectives Understand the history of wills Understand key statutory requirements for a valid will Understand common ways a will can be changed or revoked Distinguish between a joint will and a mutual will Understand the key aspects of a will contest

Wills, Trusts, and Estates Administration, 3e Herskowitz 3 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 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

Wills, Trusts, and Estates Administration, 3e Herskowitz 4 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 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 of making the will

Wills, Trusts, and Estates Administration, 3e Herskowitz 5 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Undue Influence Inducement of the testator to write a will favoring a particular beneficiary

Wills, Trusts, and Estates Administration, 3e Herskowitz 6 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Holographic Will Completely hand written; doesn’t require witness signatures Only allowed in a few states Why? proof problems fraud concerns

Wills, Trusts, and Estates Administration, 3e Herskowitz 7 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Nuncupative Will Oral will made during last moments of life, or during military service in times of war Only allowed for personal property Requires witnesses

Wills, Trusts, and Estates Administration, 3e Herskowitz 8 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Wills Must Be Signed A properly executed will requires the testator’s signature Exceptions: “x,” or another person’s signature for the testator’s can suffice Statutes direct where the will should be signed whether at the end only, or on every page

Wills, Trusts, and Estates Administration, 3e Herskowitz 9 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Wills Must Be Witnessed A properly executed will requires at least two witness signatures Attesting: observing the testator sign the will Subscribing: signing the will as a witness Witnesses don’t have to know what is in the will Witnesses must be competent Beneficiaries shouldn’t be witnesses

Wills, Trusts, and Estates Administration, 3e Herskowitz 10 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Proving A Will’s Validity Attesting Witness Testimony the most cumbersome method witnesses may have moved or died by the time of the testator’s death Self-Proving Clause/Notary Affidavit substitutes for the testimony of attesting witnesses not required to make the will, itself, valid

Wills, Trusts, and Estates Administration, 3e Herskowitz 11 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. 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

Wills, Trusts, and Estates Administration, 3e Herskowitz 12 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Joint Wills vs. Mutual Wills Joint Will One will representing the wishes and bequests of two or more testators Bad idea! Changing or revoking a joint will requires both testators’ consent Mutual Will Separate, but reciprocal wills, with an agreement that each will not be change Thought to be a better option for spouses than a joint will… But, they still put a burden on the surviving spouse, who might later want to change his or her will

Wills, Trusts, and Estates Administration, 3e Herskowitz 13 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle River, NJ All Rights Reserved. Will Contest What is it?  lawsuit challenging the validity of a will  must be brought by one who has standing, such as a disinherited 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,” which forfeits bequests to any beneficiary challenging the will