Wills, Trusts, and Estates
Attested wills are wills authenticated by having witnesses sign it.
There are three core formalities for making an attested will:
A nuncupative will is one given orally. They are generally not allowed, but some states allow them for people about to die from illness or for people in the military.
All states and UPC § 2-502(a) require the testator to sign the will for it to be valid.
Like in contracts, a signature is any mark made with the intent to be a signature.
It is often recommended to use a blue pen when signing, so you can easily tell the original from copies.
Subscription is the requirement of the UK's 1837 Wills Act that required the will to be signed at the end of the will. The entire will is invalid if there is anything written below the signature.
Unlike the common law, modern American law does not require subscription.
Attestation is the formal observation of the testator's signing by witnesses.
The UPC requires two witnesses to sign the will within a reasonable time after witnessing the signing or acknowledgment of the will.
Many states require all witnesses to be present when the testator sign his will and when they each sign it.
- A will wholly in the testator's handwriting is valid without further requirements, provided that the fact that a will is wholly in the testator's handwriting and signed by the testator is proved by at least two disinterested witnesses.
- A will not wholly in the testator's handwriting is not valid unless the signature of the testator is made, or the will is acknowledged by the testator, in the presence of at least two competent witnesses who are present at the same time and who subscribe the will in the presence of the testator. No form of attestation of the witnesses shall be necessary.
States have different definitions of the "presence" required for attestation.
Line of Sight
In England and some states, the line of sight test is used for presence. It requires the testator to have been able to see the witnesses sign the will if he looked. You have to be in line of sight. You can't be in a nearby room or something.
Some states use conscious presence, which requires the testator to comprehend that the witness is in the act of signing, whether through sight, hearing, or general consciousness of events.
Uniform Probate Code
UPC § 2-502(a)(3) does not require that the witnesses sign in the testator's presence at all. It does require them to see the testator's signing or acknowledgment of the will. If the testator has another sign on his behalf, the UPC requires conscious presence.
Attestation clauses recite that the will was executed in accordance with the applicable Wills Act. No state normally requires an attestation clause, but they give a rebuttable presumption of due execution, so you should always have one.
A slim majority of states have purging statutes, which purge benefits that witnesses to wills receive therefrom. Most of them only purge the benefits in excess of what the witness would have received in intestacy however.
If there are sufficient witnesses to a will without the interested witness, then that witness was supernumerary and may take his full devise.
See pages 159–160 of the book.
- Put the full "Page X of N" at the bottom of the pages.
- Make sure the testator understands the will and get that in writing with just him.
- Then bring in the witnesses and notary and don't let them leave until done.
- Ask the testator if it's his will which he understands and desires in the presence of the notary.
- Ask the testator to request the witnesses to sign after him.
- Have the testator sign with the witnesses standing around him.
- Have the witnesses read the attestation clause.
- Have the witness sign.
- Have the testator and witnesses sign a self-proving affidavit swearing that the will was duly executed, which the notary then signs.
- Review the documents to make sure signed right.
- Write a memo saying you followed these protocols.
- Give the testator the will.
Different states have different and additional requirements however.