1. The Last Will and Testament
Chapter 5
The Last Will and Testament

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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