Wills, Trusts, and Estates

Making a Will


Attested Will

Attested wills are wills authenticated by having witnesses sign it.

There are three core formalities for making an attested will:

  1. Writing
    • Nuncupative 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.

  2. Signature

    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.

  3. Attestation

    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.

    1. 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.
    2. 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.
    Presence

    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.

    Conscious Presence

    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 Clause

    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.

    Purging Statute

    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.

    Execution Ceremony

    See pages 159–160 of the book.

    1. Put the full "Page X of N" at the bottom of the pages.
    2. Make sure the testator understands the will and get that in writing with just him.
    3. Then bring in the witnesses and notary and don't let them leave until done.
    4. Ask the testator if it's his will which he understands and desires in the presence of the notary.
    5. Ask the testator to request the witnesses to sign after him.
    6. Have the testator sign with the witnesses standing around him.
    7. Have the witnesses read the attestation clause.
    8. Have the witness sign.
    9. Have the testator and witnesses sign a self-proving affidavit swearing that the will was duly executed, which the notary then signs.
    10. Review the documents to make sure signed right.
    11. Write a memo saying you followed these protocols.
    12. Give the testator the will.

Different states have different and additional requirements however.

Notarized Will

UPC § 2-502(a)(3) says that a will is valid if it is signed by two witness or if it is notarized. However, notarized wills have only actually been adopted in Colorado and North Dakota.

Holographic Will

A holographic will is a will handwritten and signed by the testator.

In a slight majority of states, holographic wills are permitted. (Mainly just not in the Midwest, plus some other areas you can see on the map (if it exists yet).)

Virginia was the first state in America to permit holographic wills and UPC § 2-502(b) allows them as well.

About one-third of states the states permitting holographic wills require that the whole will be handwritten, including Virginia. The remaining states only require that the "material provisions" be handwritten and therefor allow for, say, filling in a form will by hand. These states are split roughly 50/50 on whether to allow extrinsic evidence in the establishment of testamentary intent. UPC § 2-502(b) does allow extrinsic evidence.

Almost all states allow the testator to sign anywhere on the will.

Strict Compliance

Traditionally, wills must be executed in strict compliance with all the formal requirements of the applicable Wills Act. Even if the court believes the will to be legitimate and intended by the deceased, they will not admit the will. (E.g.: Stevens v. Casdorph)

Substantial Compliance

South Australia and some American jurisdictions follow a substantial compliance approach to will validation. This approach admits technically invalid wills as valid if the noncomplying will expresses the decedent's intent and sufficiently approximates the required formalities so as to serve the purposes thereof.

Harmless Error

UPC § 2–503 treats a document as if it had been executed in compliance with the formal requirements if the proponent of the document established by clear and convincing evidence that that decedent intended the document to constitute his will or a modification thereof.

Evidence of dispositive intent is different from evidence that a piece of paper was intended to serve as a will.

VA Code § 64.2-404 follows the harmless error rule, but does not allow it to patch a missing signature except in the case of two people mistakenly signing each other's will.