DECEDENTS’ ESTATES AND TRUSTS
MAULE SPRING 2018
CREATION/FORMATION [CHAPTER 5] Generally strict compliance with the formal requirements of a will are necessary otherwise the will fails. UPC §2-503 allows courts a dispensing power to excuse harmless error if there is clear and convincing evidence that the testator intended the document to be a will. This is referred to as substantial compliance.
There are 4 formal will requirements: (1) legal capacity, (2) testamentary capacity, (3) testamentary intent, (4) compliance with statutory formalities.
LEGAL CAPACITY AGE:
PA §2501: 18 years old
UPC §2-501 requires a testator to be 18 years old to have legal capacity Marital Status: Some states permit a person below the statutorily required age to execute a valid will if the person is legally married. Thus, marriage may (in some states) supersede the age requirement.
TESTAMENTARY CAPACITY (SOUND MIND) PA §2501: requires testator to have a “sound mind” UPC §2-501 requires that the testator be of “sound mind” Elements:
comprehend action and its effect
know nature and extent of property
recognize natural objects of bounty
simultaneously hold elements in mind and make reasonable judgment
TESTAMENTARY INTENT Testator must intend that the very instrument the testator executed is to be the testator’s will.
A. ATTESTED WILLS: Attested wills, that is, wills that are witnessed, at the most common type of wills. An attested will must be:
IN WRITING: Attested wills must be in writing. Statutes generally do not specify with what or on what the will must be written. See UPC §2-502/PA §2502
SIGNED BY TESTATOR: PA §2502: Must be signed Location of Signature: must be signed at the end of the document. Any words following signature are invalid but the will itself is valid. Witnesses: two witnesses needed only if Testator is unable to sign his name Signature by Another: someone other than Testator can sign the will if Testator declares the instrument to be his will in front of two witnesses who sign UPC §2-502(a)(1) requires the will be signed by the testator. Location of Signature: UPC §2-502 does not mandate the location of the signature. Signature can appear anywhere in the document (margins, top, bottom, middle, etc.)
3. WITNESSED: PA: Generally, does not require witnesses UPC §2-502(a)(3): does not require witnesses if the testator acknowledges the will in front of a notary or other individual authorized to take acknowledgements. Most States: require witnesses who have:
LEGAL CAPACITY: UPC §2-505(a): does not limit legal capacity by age
Some states: have a minimum age requirement for witnesses (such as 13 or 14 years old) PA: does not require any witnesses
ATTESTATION CAPACITY: UPC §2-502(a): witnesses must be “competent” or “credible” at the time they attested to the will. The prevailing view is that witnesses must be capable of giving testimony in court.
ATTESTATION INTENT: The witness must have animus attestandi; they must intend to give validity to the document as an act of the testator.
TESTATOR SIGNING IN WITNESS’S PRESENCE In Practice: the testator should sign the will in the presence of the witnesses. PA: No witnesses needed if Testator can sign his own name UPC §2-502(a)(3) requires that the testator may simply acknowledge the testator’s signature to the witnesses. This acknowledgment can be
uthorizing holographic wills mandate that the will be in the testator’s “handwriting” rather than requiring the stator merely to “write” the will. UPC §2-502(b)
HOLOGRAPHIC WILL REQUIREMENTS: In most states, holographic wills do not need to satisfy additional requirements. UPC §2-502(b). Thus, as long as the testator signs the self-written instrument, it will satisfy the necessary formalities. NON-UPC states do not recognize holographic wills because there are no witnesses.
EXTENT OF HOLOGRAPHIC MATERIAL: Jurisdictions follow one of three main approaches with respect to the amount of nonholographic material a will may contain and still be valid without proper attestation.
INTENT VIEW: The strictest states follow this approach. Under this approach, if the testator intended any nonholographic material to be part of the will, the will is nonholographic even if the nonholographic material is not necessary to an understanding of the will.
SURPLUSAGE VIEW: This is the prevailing approach. This approach permits nonholographic material to be ignored if doing so does not alter the testator’s dispositive arrangements.
3. UPC §2-502(b)’s MATERIAL PROVISION APPROACH: This is the modern view, which deems a will to be holographic merely if the most important words such as the names of the beneficiaries and the property they are to receive are in the testator’s handwriting.