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4. Formalities Introduction

4. Formalities Introduction. Formalities depend on type of will . Attested (witnessed) Holographic (handwritten) Nuncupative (oral) Others Military Notarized (UPC). Formalities Policies. Ritual or cautionary Evidentiary Protective Channeling.

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4. Formalities Introduction

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  1. 4. FormalitiesIntroduction

  2. Formalities depend on type of will • Attested (witnessed) • Holographic (handwritten) • Nuncupative (oral) • Others • Military • Notarized (UPC)

  3. Formalities Policies • Ritual or cautionary • Evidentiary • Protective • Channeling

  4. 4. FormalitiesAttested WillPC § 59; EC § 251.051

  5. Formalities Overview • Written • Signed • Witnessed

  6. 1. In Writing • No requirement regarding what written on or with.

  7. 2. Signed by Testator • Any symbol executed or adopted by the testator with present intent to authenticate the will.Gov’t Code § 311.005(6).

  8. Sample Signatures

  9. Proxy Signatures • 1. Probate/Estates Code • By the testator’s direction, and • In the testator’s presence.

  10. Proxy Signatures • 2. Notary under Gov’tCode § 4040.0165 • In presence of a witness. • But only if testator physically unable to sign.

  11. Location • None specified in Texas. • Should be at the end or “foot” of will.

  12. 3. Attestation • Number = at least two • In re Estate of Iverson – p. 93 Substantial compliance approach rejected.

  13. Capacity of Witnesses • 1. Legal Capacity • Above 14 +

  14. Capacity of Witnesses • 2. Attestation Capacity • Credible; qualified to testify in court

  15. Capacity of Witnesses • 3. Time • When attestation occurred

  16. Formalities forAttested Wills[continued]

  17. Capacity of Witnesses • 4. Knowledge • Publication not required (witnesses do not need to know they are witnessing a will) • Davis v. Davis, p. 96 • But is needed for SPA

  18. Order of Events • What if witnesses attest before testator signs? • Strict View • Continuous Transaction View [Texas]

  19. Attestation by Mark • Not allowed. • Statute says “their names”

  20. Attestation by Proxy • Not allowed. • Statute says “in their own handwriting”

  21. Location of Attestation • Statute says “subscribe” • But, case law not strict

  22. Presences • 1. Witnesses attest in presence of testator? • Required in Texas. • “Conscious Presence” defined – Nichols p. 102 • Visually-impaired testators • Morris – p. 102, note 5

  23. Presences • 2. Witnesses attest in each other’s presence? • Not required in Texas.

  24. Presences • 3. Testator signs (or acknowledges a prior signature) in presence of witnesses? • Not required in Texas.

  25. Witness as BeneficiaryPC §§ 61 & 62; EC § 254.002 • 1. Effect on will • None – will remains valid.

  26. Witness as BeneficiaryPC §§ 61 & 62; EC § 254.002 • 2. Effect on beneficiary’s gift • Void, unless an exception applies.

  27. Witness as BeneficiaryPC §§ 61 & 62; EC § 254.002 • 3. Exceptions • a. If beneficiary is also an heir, beneficiary receives smaller of will and intestate share.

  28. Witness as BeneficiaryPC §§ 61 & 62; EC § 254.002 • 3. Exceptions • b. Will is otherwise established (e.g., another witness).

  29. Witness as BeneficiaryPC §§ 61 & 62; EC § 254.002 • 3. Exceptions • c. Corroboration by disinterested and credible person.

  30. Self-Proving AffidavitPC § 59; EC §§ 251.104 & 251.1045 • Substitutes for in-court testimony of witnesses when will probated. • Saves time, expense, and inconveniencewhen probating will. • Does not “strengthen” the will.

  31. Self-Proving AffidavitPC § 59; EC §§ 251.104 • 1. Traditional – two-step with “double” signatures. SPA is separate document.

  32. Self-Proving AffidavitPC § 59; EC § 251.1045 • 2. Modern (as of September 1, 2011) – one- step with “single” signatures. SPA is inside the will.

  33. Self-Proving Affidavit • The Boren issue – p. 105

  34. Selecting Witnesses

  35. Selecting Witnesses • Normally, little thought given.

  36. Selecting Witnesses • 1. Witnesses familiar with testator

  37. Selecting Witnesses • 2. Supernumerary witness

  38. Selecting Witnesses • 3. Youthful and healthy witnesses

  39. Selecting Witnesses • 4. Traceable witnesses

  40. Selecting Witnesses • 5. Witnesses who would favorably impress judge and jury.

  41. Will Execution Ceremony

  42. Will Execution Ceremony -- Purposes • 1. Psychological benefits

  43. Will Execution Ceremony -- Purposes • 1. Psychological benefits • 2. Effectuate client’s intent

  44. Will Execution Ceremony -- Purposes • 1. Psychological benefits • 2. Effectuate client’s intent • 3. Limit exposure to malpractice claims

  45. Will Execution Ceremony –EPD July 2012 [replaces pp. 109-116] • 1. Before ceremony • 2. Ceremony • 3. After ceremony

  46. Warning!!! • Drafting a will and supervising a will execution ceremony = the practice of law. • Do NOT engage in this conduct until licensed. • NO exception that testator knows you are unlicensed or you are not being paid.

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