Estates and Trusts FNBSLW 442

1. Estates and TrustsFNBSLW 442 Wills Requirements for a Valid Will

2. Wills … A Privilege “Rights of succession to the property of a deceased . . . are of statutory creation, and the dead hand rules succession only by sufferance. Nothing in the federal constitution forbids the legislature of a state to limit, condition, or even abolish the power of testamentary disposition over property within its jurisdiction.” Irving Trust Co. v. Day, 314 U.S. 556, 562 (1974).

3. Requirements for a Valid Will Legal Capacity Testamentary Capacity Testamentary Intent Formalities

4. Legal Capacity A person must possess a certain status to be able to make a testamentary disposition of property. Early U.S. law prohibited married women, aliens, convicts and Native Americans from executing a will merely because of their supposedly inferior status.

5. Age Every state today grants a person the legal capacity to execute a will upon reaching a statutorily specified age. The most common age is eighteen. In a few states, it is as young as fourteen. No state has different ages based on the gender of the testator. Wisconsin – W.S.A. § 853.01 – “…18 years of age or older….”

6. Age and Marital Status Several states permit a person below the statutorily mandated age to execute a will if they are legally married.

7. Age and Military Service A few states provide that a person in military service may execute a will even if the person is under the normal minimum age for legal capacity.

8. Testamentary Capacity The second requirement for a valid will is that the testator must have had testamentary capacity at the time the testator executed the will. “Sound mind” Wisconsin – W.S.A. § 853.01 – “Any person of sound mind ….”

9. Elements of Testamentary Capacity Comprehended the action being taken and its effect, Knew the nature and extent of the testator’s property, Recognized the natural objects of the testator’s bounty, and Simultaneously held the first three elements in the testator’s mind long enough to make a reasoned judgment regarding property disposition.

10. Comprehend the Action and Its Effect A testator must understand what he is doing and its effect. It is not necessary for the testator to know all of the legal terms involved in the process. E.g., Tommy and his friend “Will”

11. Know Nature and Extent of Property The testator must know, or be able to understand, the general nature and extent of his property. The testator does not need to be able to provide a precise accounting of each asset he owns and its value. E.g., estate worth $1,000,000 more.

12. Recognize the Natural Objects of Bounty The testator must know, or be able to understand, the individuals who would naturally benefit from his death. In other words, the testator needs to know who would receive his property if he died intestate), such as spouse, children, parents, grandparents, siblings, etc. E.g., 20 grandchildren … what were their names again?

13. Simultaneously Hold Elements in Mind and Make Reasonable Judgment This element requires the testator to hold the first three elements in his mind simultaneously and for a long enough time to perceive their relationship to each other and to make a reasonable judgment. E.g., periods of lucidity. E.g., under the influence.

14. Testamentary Intent The will must reflect the testator’s intent. The testator must intend that the very instrument he executed is to be his will and effective upon his death. E.g., letter to attorney listing changes to will. E.g., sham will as part of hazing ritual.

15. Will Formalities Most states require exact compliance with will formality statues. Minor errors are not excused.

16. Purposes of Will Formalities Ritual or Cautionary Function – to make sure the testator intended to make and at-death distribution of his property. Evidentiary Function – create reliable evidence of testator’s intent. Protective Function – to make it difficult for an evil person to exert undue influence. Channeling Function – to increase the confidence of the testator that his desires will be carried out upon his death.

17. Attested Wills Attested wills, that is, wills that are witnessed, are the most common type of will. An attested will must be: In writing, Signed by the Testator, and Witnessed.

18. In Writing Statues generally do not specify with what or on what the will must be written. Examples include wills written on a nurse’s petticoat, inscribed on a bed post, scratched into paint on a tractor fender, written on the bottom of a chest of drawers, and etched on an empty egg shell. Wisconsin – W.S.A. § 853.03 – “every will . . . must be in writing….”

19. Signed by Testator All states require that attested wills be signed by the testator. The formality of signature requirement serves two functions: Assurance of Approval by the Testator Aura of Finality Wisconsin – W.S.A. § 853.01 – “It must be signed by the testator….”

20. Signature Defined Broadly defined to encompass any symbol the testator executes. Legal name not necessary By Mark Proxy Signature

21. Proxy Signature Most states permit the testator’s signature to be affixed to the will by another person. Generally, two components, Proxy must sign in the testator’s presence and Proxy must sign at the testator’s direction . Some states also require proxy’s signature to appear as well. Wisconsin – W.S.A. § 853.03 – “. . . or in the testator’s name by another person at the testator’s direction and in the testator’s conscious presence.”

22. Location of Signature Most state laws do not mandate the location in which the testator’s signature must appear. Some states require that wills be signed at the end or foot of the instrument.

23. Attested by Witnesses Most states require at least two witnesses. Generally, there is no statutory minimum age for a witness. Witnesses must be competent or credible at the time they attested to the will. Wisconsin – W.S.A. § 853.07 – “Any person who, at the time of execution of the will, would be competent to testify as a witness….”

24. Publication In most states, there is no requirement that a testator publish the will to the witnesses, that is, tell the witnesses the document they are witnessing is a will. Some states require publication. Even in publication states, witnesses do not need to know the contents of the will.

25. Temporal Order The testator should sign the will prior to the attestation of the witnesses. English or strict view - testator first. American or continuous transaction approach – as long as the testator signs and the witnesses attest at approximately same time as part of a continuous transaction, execution/attestation is effective. Wisconsin – W.S.A. § 853.03(2) – “within a reasonable amount of time after witnessing….” Testator sign, Testator acknowledge signature, or Testator acknowledge will.

26. Interested Witnesses An interested witness is a witness who stands to benefit if the testator’s will is valid. Ramifications of having an interested person serve as a necessary witness to the will: Entire will is void. Gift to the witness is void. Gift to the witness is void unless witness would receive same or more as intestate heir. No effect.

27. Interested Witnesses in Wisconsin Wisconsin – W.S.A. § 853.07(2) – “Subject to (b) and (c), a will is not invalidated because it is signed by an interested witness.” (b) any provision for an interested witness (or the witness’s spouse) are invalid to the extent that the aggregate value exceeds what the witness (or witness’s spouse) would have received if testator died intestate. (c) but … (b) doesn’t apply if (1) there are two other disinterested witnesses or (2) there is sufficient evidence that the testator intended the full transfer to take effect.

28. Self-Proving Affidavit A self-proving affidavit is a notarized statement by the testator and the witnesses affirming under oath that all the requirements of a valid will have been satisfied. Wisconsin – W.S.A. § 853.04 – “A will may be simultaneously executed, attested and made self-proved by the affidavit of the testator and witnesses.”

29. Holographic Wills A holographic will is prepared in the testator’s own handwriting. In approximately ½ of the states, holographic wills are exempted from the attestation requirement. Wisconsin - Holographic wills are not given any special treatment. The attestation requirement still applies.

30. Oral Wills Many states do not recognize oral wills. In states that do recognize oral wills, there are generally restrictions imposed, such as on: The type of property covered – no disposition of real property. The amount of property covered – small $ amounts. Condition of testator – imminent death. Number of witnesses – three, even if only two are needed for attested wills. Wisconsin does not recognize oral wills.

31. Statutory Wills Enacted by only a handful of states. Fill-in-the-Blank format. Wisconsin – W.S.A. §§ 853.50-853.62