T&E Outline - MASTER - Wills Formalities and Forms...

Wills: Formalities and Forms
PRO REASONS FORMALITIES ARGUMENTS
o
The primary purpose of those is to ensure that the document reflects the unrecorded intent of the
testator ( Channeling Function – dispose the assets the way you want to)
o
Requirements that the will be in writing and signed by the testator also serve an evidentiary function
by providing the courts with reliable evidence of the terms of the will and of the testamentary intent
o
Additionally attestation requirements prevent fraud and undue influence
o
Further, the formalities perform a channeling function by requiring a certain degree of uniformity in the
organization language and content of will
o
Finally he ceremony serves as a Ritualistic Function, to impress the testator with the seriousness of the
occasion, the importance of what the T is doing
Execution of Wills
- Attested Wills – The function of formalities
o Most basic formalities for an attested will are three: (1) writing, (2) signature of the testator, (3) and
attestation by witness
NY STATUTE EPTL 3-2. Will requirements
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3 + Declaration and Presence
o
Must be followed in the order prescribed
o Its not going to be fatal that the Witness signed after the T
o NY requires W to sign in the testators presence
 But don’t need to see O sign
o NY signed 30 days within of each others (witnesses) signature not the Ts signing
o
Witnesses must know what they are signing is the will, don’t need to know the contents (declaration)
Formalities in Action
o
Uniform Probate Code (1990) Section 2-502 ( No presence)
 (a) Except as provided in subsection (b) and in §2-503, 2-506, & 2-513 a will must be
•
(1) In writing (2) Signed by the testator or in the testator’s name by some other individual
in the testator’s conscious presence and by the testators direction; and (3) EITHER (A)
signed by at least two individuals each of whom signed within a reasonable time after he
or she witnessed either the signing of the will as described in ¶ (2) or the T’s
acknowledgment of that signature or acknowledgment of the will; or

(b) [Holographic Wills] A will that does not comply q/ subsection (a) is valid as a HW, whether
or not witnessed, if the signature & material portion of the document are in the T’s handwriting
 (c) [Extrinsic Evidence] Intent that a document constitute the T’s will can be established by
extrinsic evidence, including, for HWs, portions of the doc that are not in the T’s handwriting
o
In RE GROFFMAN – Failed to have two witnesses presence when he singed the will  not valid
 Governing will statute required that the witness be present at the time of the Ts signing
• The problem is not that they signed at separate times time the problem rather is that the T
did not sign in the presence of the witnesses at the same time
o
Stevens v. Casdroph - Establishing that mere intent by a testator to execute a written will is insufficient
 The actual execution of a written will must also comply with the statute.