Wills Rules 2

  1. Formalities
    Presumption that a will was properly executed when supervised by attorney not receiving an interest or when will contains an attestation clause.

    Requires a writing that the testator signs with present testamentary intent in the joint presence of two witnesses, and that both witnesses understand the significance of testator’s act.
  2. Writing signed by testator
    Signature at end. Anything after signature will be discarded as invalid. "End" = conclusion of dispositive language.

    Capacity = 18 years of age and of sound mind.

    Signature must be full and intended signature. May be signed by another in testator's presence and at his request - signor must give own signature and address as well, and may not be a witness to the will..
  3. Witnesses
    Testator may execute outside witnesses' presence, but must acknowledge his sigtature to each witness.

    Need not sign in each other's presence, but must attest to testator's signature within 30 days of each other.

    Need not read will, but testator must declare that the instrument is his will.

    Competency = has sufficient mental capacity and maturity to comprehend will. No strict age requirement

    Interested witnesses - NY adopted purge theory: invalidates any will portions granting interested witness excess over what witness would receive under intestacy or by prior will.
  4. Testamentary intent
    Must generally know and approve of will's contents, but need not read it or understand all technical provisions.

    Must understand nature of the act and intend it to have testamentary effect.

    Joke wills are invalid.
  5. Holographic wills
    NY, requires 2 witnesses, and ONLY if executed by the following:

    • executed by member of US armed forces during time of war or armed conflic
    • executed by mariner at sea
    • executed by person serving with or accompanying armed force engaged in actual war or armed conflict

    Valid holographic wills become invalid:

    • one year following discharge from armed forces
    • three years after a mariner at see made the will
    • one year after creation by one accompanying armed forces
  6. Nuncupative wills
    Same requirements and limitations as holographic wills for NY.
  7. Codicils
    Alters, amends, or modifies will, but does not replace it.

    Must be executed with SAME formalities as a will.

    Republishes the will as of date of codicil. May validate an invalid will through this republishing.
  8. Foreign wills
    Valid if executed under NY law or law of state where it was executed or where testator was domiciled (including holographic wills and nuncupative wills)

    NY law used to probate foreign wills.
  9. Will substitutes
    • Revocable trusts
    • Pour over wills (probate property given to trustee of inter vivos trust)
    • Bank accounts
    • Payable on death clauses
    • Life insurance
    • Deeds
    • Totten trusts
    • Gifts Causa Mortis
Card Set
Wills Rules 2
Execution of Will