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Trusts and Wills
University of Dayton School of Law
Searcy, E. Dale

Wills and Trust Outline

Formal Requirements of attested wills

A. UPC Wills- Recognizes 4 types:
1. Ordinary Witnessed Will [UPC § 2-502(a)] 2. Holographic or handwritten will [UPC § 2-502(b)
3. Foreign will
4. International will

B. Formal Requirements of Attested Wills
1. Testamentary Capacity
a. Must be Age 18 to make a will.
§ In nearly all states, a person who attained age 18 has the right and power to make a will (UPC 2-501). Requirement is applied as of the date of execution of the will, not date of death.
b. Mental Capacity
§ UPC § 2-501: States that the testator must be of sound mind.
§ The capacity required for making a will is a different and lower std of capacity then that required to make a contract. To have mental capacity to make a will, the testator must have sufficient capacity to be able to understand:
(i.) The Nature of her act, i.e. must actually know she is executing a will;
(ii.) The Nature and extent of her property
(iii.)The persons who are the natural objects of her bounty
(iv.) The nature of the disposition she is making, i.e. a general understanding of the practical effect of the will as executed.

(1) Capacity Determined at time of will execution
o All circumstances existing at the time of execution are admissible on the capacity issue, as well as evidence relating to the testator’s state of mind shortly before and after the execution of the will.
o Generally, the more distant in time from the will’s execution a particular fact might be, the less significant will be attached to that fact in determining the testator’s capacity at the time of execution.
(2) Testator with physical aliments or drug addiction- NOT LACK CAPACITY
o Fact that the testator was very old, physically frail or ill, that she possessed a failing memory, or was a habitual drinker or addicted to drugs doesn’t mean that she lacked the requisite mental capacity and was unable to comprehend the nature of her act.
(3) Testator adjudicated Insane
o A person who has been adjudicated insane or for whom a guardian or conservator has been appointed doesn’t necessarily lack testamentary capacity. While such an adjudication is eviden

e this instrument to be my last will”
· Problem arises involving instruments that contain no such clause and are ambiguous as to whether they were intended to be testamentary intent. Found only if shown 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
· Can admit extrinsic evidence to show intent

a. Present Intent required
§ A signed and witnessed statement of an intent to make a will in the future (eg. “I am going to make a will leaving all my property to you) is not a will, for it shows that the instrument itself was not intended to be a will.
b. Sham wills lack testamentary intent
An instrument containing “this is my last will”, raises a presumption of testamentary intent, but the presumption is rebuttabe. Evidence is