Governing Law for Validity of a Will
- Under common law, wills are invalid if they do not meet the specific requirements of the state
- law. Some states will find a will valid if the decedent substantially complied with the state’s requirements.
- Under the UPC's harmless error rule, a will not properly executed will still be valid if the party seeking to have it validated proves by clear and convincing evidence that the
- decedent intended the writing to be his will. Generally, the greater the departure from the necessary execution formalities, the harder it will be to prove the testator’s intent.
Incorporation by Reference
- In most states, a document or writing may be incorporated into a will by reference if it: (1) was in existence at the time the will was
- executed; (2) is sufficiently described in the will; AND (3) the testator intended to incorporate it into the will.
A codicil is an instrument made after a will is executed that modifies, amends, or revokes a will. A codicil MUST satisfy the same formalities as a will to be valid. Execution of a codicil republishes the will, meaning courts will consider the original will to have been executed on the same date as the codicil. A validly executed codicil will cure any interested witness issues with the original will (as long as the codicil is witnessed by the requisite number if disinterested witnesses). However, most courts hold that a codicil CANNOT republish an invalid will.
A holographic will (or written alteration to a will) is a handwritten will that is not witnessed. Not all states recognize holographic wills. In the states that do, some require that the writing also be signed by the testator.
- Under the common law, the signing of the will must be witnessed by two disinterested witnesses (individuals who are not receiving a
- benefit under the will).
- However, most states provide for two exceptions in which the will remains valid despite being witnessed by an interested witness: (a) if the interested witness is an heir, any gift to the witness is reduced to an intestate share; or (b) if another disinterested witness was present so that there were still a
- total two disinterested witnesses.
Will Execution Requirements
A will is valid if the specific formalities provided by state law are followed. Under the UPC, a will must be: (1) in writing; (2) signed by the testator (or by some other individual in the testator’s conscious presence and by the testator’s direction); AND (3) either (a) signed by at least two individuals within a reasonable time after witnessing the signing of the will or (b) notarized.
- A valid will requires intent by the testator to create the will. Thus, if it is proven that the testator lacked testamentary intent, a will
- will be deemed invalid. Extrinsic evidence is admissible to prove intent.
- Under the majority view, a will is signed in the testator’s presence if it is signed within the testator’s line of sight. Under the minority view and the UPC, a will is signed in the testator’s
- presence if it is signed within the range of the testator’s senses.
Any property not passing by a valid will or by operation of law will be governed by a state’s applicable intestacy statute.
If the decedent leaves only a surviving spouse and no descendants, in most states the surviving spouse will receive the entire estate. However, some states provide that a certain portion of the estate will be given to the decedent’s parents and the parents’ issue.
If the decedent leaves a surviving spouse and descendants, then in most states the surviving spouse will receive a certain portion of the estate and the descendants will take a certain percentage. Under the Uniform Probate Code (UPC), the surviving spouse will receive the entire state if all descendants are descendants of the surviving spouse.
If the decedent does not leave a surviving spouse, the estate passes to the decedent’s descendants.
If the decedent does not leave a spouse or descendants, the estate passes to the decedent’s surviving parents equally or to one if only one survives. If no surviving parents, then to the descendants of the decedent’s parents.
In the majority of states, the distribution of intestate assets will be performed using the per capita at each generation approach.