♦ Leslie thinks that all that matters is that the ct likes who inherits and that it doesn’t go against social norms → don’t say this, however ♦ Formalities are relevant but not dispositive b/c demonstrates T’s intent. Tension between effectuating T’s intent and sense of family obligation. ♦ However, if will is not witnessed, for example, might show that the will is not T’s final intent. ♦ Harmless error: ♦ Movement away from strict formalism 8. O THER P RECAUTIONS FOR A IRTIGHT W ILL a. Staple and number pages. b. Beneficiary should not be in the room → coercion [you should have disinterested witnesses] c. If any other wills, write this will revokes all prior wills. d. Initial each page e. Have a backing and staple → then can tell if will has been tampered with f. Don’t change date of will g. Tell Can’t touch Will once finished h. End things in mid-sentence. 9. Witnesses Importance: need to lay the foundation in court before can authenticate a will to introduce into probate. Witness lays the foundation (i.e. this is the T’s signature). It is important to choose your witnesses carefully. ♦ Need to be able to locate them → in NY, witnesses must affix address when sign will ♦ Neutral people are ideal (but sometimes if use secretary, and have will contest she won’t remember which particular will is at issue if witnessed many) ♦ In NY, if can’t find the witnesses, can still get will admitted → §1405 ♦ W/no witness, need someone competent to testify about T’s signature ♦ Self-proving affidavit : Affidavit is itself sworn testimony regarding validity of execution. Presumption that will valid allowing probate without testimony. ♦ The reason for the attestation clause ( Π of boilerplate language in will that states the circumstances of the execution and provides a place for the witnesses to sign). is the presumption of due execution it creates. A witness who forgets the
15 circumstances of the execution can identify his signature to admit will to probate. Witness is expressing a present intent to act as a witness. Do you need if you have self proving/ ♦ NY EPTL 3-3.2 allows the use of a beneficiary as a witness (as long as at least two other witnesses aren’t beneficiaries). Otherwise, his share goes to the residuary and if no residuary to intestacy. ♦ Rule about voiding gifts is limiting when person is intestate heir? If void, any attesting witness who would be distributee if will were not is entitled to receive intestate share. Argument: It complied with applicable statute. Substantial compliance [trend away from strict formalism]. 2-503 doesn’t even have to be substantial, intent. [if jurisdiction hasn’t adopted 2- 503, used substantial] Contesting the Will (once over the formality hurdle, other ways to contest) B. Testamentary : T can only execute a valid will/codicil if has testamentary capacity.
You've reached the end of your free preview.
Want to read all 72 pages?
- Fall '06
- Intestacy, Will, UPC, Undue influence