Will Execution: the Common Law Elements of the Wills Act Formalities

To execute a valid will means to perform everything that is necessary to conform to the requirements of the law — often called the Wills Act formalities — so that it will have the effect intended. In years past, most jurisdictions followed the common law that required strict compliance, but the modern trend is to follow the testator's intent as well as possible, and not allow correctable or harmless errors to invalidate a will.

The Wills Act formalities serve 4 main purposes:

  1. to serve as evidence that the document is, indeed, the testator's last will and testament;
  2. that the ritual of following the requirements will alert the testator that it is an important document and, thus, should be given careful consideration;
  3. to prevent fraud since it will be more difficult to alter it without leaving evidence of tampering;
  4. channeling the testator to consult an attorney to execute a will, since any mistakes may invalidate the will, causing the testator's property to fall under intestacy.

A properly executed will has 3 fundamental requirements:

  1. the will itself,
  2. signing,
  3. attestation.

Each requirement has further requirements in that it must be done in a specified way, especially the signing, and the attestation.

The will must also show that the testator intended that the document to be his will, to ensure that the document was not written for another purpose, although the purpose is usually evident from the document itself. Section 2-502 of the Uniform Probate Code permits the court to use extrinsic evidence to determine testamentary intent.

Real Word Examples: Testamentary Intent Clauses of Famous Wills

The Will must be in Writing

The will must be in writing. Oral wills — also known as nuncupative wills — are not permitted in most states, even if the testator is videotaped, although the videotape can supply evidence of the testator's intent and mental capacity or to explain the gift distribution to relatives. In those states where oral wills are recognized, strict requirements help to reduce fraud, such as the prospect of imminent death when the testator had no time to execute a traditional will. Strong evidence must support the content of the will, since an oral will would be an easy target for fraud.

Sometimes the writing can be in electronic format. Only the state of Nevada currently allows the use of electronic wills, although electronic wills will probably be the future, since it is much more efficient. One problem with electronic wills is that there must be a designation of the will as being a will. For instance, Nevada requires that the electronic version be held by a custodian or in the testator's home or business and that it must be digitally signed and in a format where unauthorized alterations can be detected.

A will can also be handwritten. Such holographic wills are recognized in most jurisdictions, and the main benefit of a holographic will is that it does not need to be witnessed. Sometimes part of the will can be printed and part handwritten, but jurisdictions differ in how much printed material will be accepted for a will that is not witnessed, and some jurisdictions require that the material provisions must be in handwriting.

The requirement for a minimum amount of handwriting for an unwitnessed will execution is so that there will be more material for handwriting analysis that will be used to determine that the holographic will is actually the will of the decedent. Section 2-503 of the Uniform Probate Code (UPC) requires that the significant portions and the signature be in the handwriting of the testator. Of course, if the holographic will is properly witnessed, then it makes no difference how much is handwritten or typewritten, or the portions thereof. All holographic wills should be dated and signed at the end of the will by the testator.

Some items are not typically presented in a will, such as burial arrangements or instructions as to where to find documents. These items should typically be written in a separate document for your personal administrator.

Signature Required at the End of the Will

The will must be subscribed — signed at the bottom. Although the testator's full name is not required, a partial signature is not valid. If the testator is feeble, he can sign with a mark as long as he intended it to be his signature, and it is witnessed. The witness must write the name of the testator below the testator's mark and the witness must sign the document as having witnessed the testator making the mark. If the testator cannot even make a mark, then he can have a witness sign his name, under his direction and in his presence.

A consequence of requiring that the signature be at the end of the will is that any writing after the signature will not be considered part of the will, especially if it was added after the signing of the will, unless the writing satisfies the requirements of a codicil. Indeed, if the jurisdiction requires that the will be subscribed, then any writing below the signature will invalidate the entire will. If the jurisdiction does not require that the signature be at the end of the will, then all the writing after the signature will be considered part of the will if it was there before the document was signed.

Witnesses Must Corroborate that the Will is the Testator's

Witnesses must either see the testator sign the will or hear the testator acknowledging that the signature on the will is his. The witnesses must then sign, in everyone's presence, their names below the testator's signature and must know that they are signing the testator's will. Likewise, the testator must see or be aware of the witnesses signing the will.

Since the witnesses are signing that they witnessed the testator signing his signature or the signature already on the will was acknowledged as the testator's, most courts have reasoned that the signature of the witnesses must come after the signature of the testator. However, the modern trend is to disregard the order of the signatures as long as everyone signed in everyone's presence.

Sometimes the actual signing does not have to be seen, as long as the witnesses have presence, determinable by 2 tests: line of sight and conscious presence. The line-of-sight test requires that 1 witness be within the line of sight of the will when the other witness signs it, even if the witness is not actually looking in that direction. For instance, the signature of a witness will not satisfy the Wills Act formalities if the other witness goes to the bathroom while the will is being signed by the other witness. The modern trend applies the conscious presence test where the signatures of the witnesses are valid as long as they are aware that they are signing the testator's will as witnesses.

Some jurisdictions allow delayed attestation where the witnesses can sign after the will execution ceremony has ended, but it must be within a reasonable time afterward.

Another factor that may complicate probate is whether the witnesses are disinterested — they are not taking under the will, since they may be required to testify as to the testator's capacity at the time of the signing, that the testator actually signed the will, and that the formalities were observed. However, the witness may be biased if she takes under the will. The common law solution was to invalidate the entire will, but this harsh remedy has been ameliorated by limiting the remedy to the interested witness, either by voiding the gift to the witness or by purging the excess of the gift over what she would have taken under intestacy or under a previous will which she did not witness. Some jurisdictions allow a rebuttable presumption of misconduct — if the witness successfully convinces the court that there was no misconduct then she can take her gift.

Section 2-505 of the Uniform Probate Code (UPC) allows an interested witness to a will, since many times, the interested witness is a family member who is witnessing a home-drawn will, and so it would be harsh to deprive her of her gift. The commentary of the UPC argues that if an interested witness takes a large gift under suspicious circumstances, then the gift can be voided as the result of undue influence or fraud, and that in most cases of actual undue influence or fraud, the conniver is careful to use disinterested witnesses as a way to ensure his gift under the will.

Real World Example: The Attestation of Michael Jackson's Will

The following attestation followed Michael Jackson's signature:

On the date written below, MICHAEL JOSEPH JACKSON, declared to us, the undersigned, that the foregoing instrument consisting of five (5) pages, including the page signed by us as witnesses, was his will and requested us to act as witnesses is to it. He thereupon signed this Will in our presence, all of us being present at the same time. We now, at his request, in his presence and in the presence of each other, subscribe our names as witnesses.

Each of us is now more than eighteen (18) years of age and a competent witness and resides at the address set forth after his name.

Each of us is acquainted with MICHAEL JOSEPH JACKSON. At this time, he is over the age of eighteen (18) years and, to the best of our knowledge, he is of sound mind and is not acting under duress, menace, fraud, misrepresentation or undue influence.

We declare under penalty of perjury that the foregoing is true and correct.

Executed on July 7, 2002 at 5:00 PM, Los Angeles.

Below the above, 3 witnesses signed their signatures, followed by "Residing At" and then listed their addresses.

Source: Last Will Of Michael Joseph Jackson: Original source is no longer available.

Real World Example: The Signing and Attestation of Janis Joplin's Will

The signing and attestation, including signatures of Janis Joplin's will.

from https://www.janisjoplin.net/life/autopsy/

The Purpose of the Wills Act Formalities

The common law approach is to require strict compliance with the Wills Act formalities; otherwise, it is not a valid will and it will not be admitted to probate. Supposedly, these strict requirements were to prevent fraud and to instill upon the testator the gravity of signing a will. However, some jurisdictions, such as Pennsylvania, do not require the witnessing of the testator signing the will, and, yet, there is no evidence that probate in Pennsylvania is any more fraudulent than in other jurisdictions requiring attestation. Indeed, transferring property through nonprobate instruments does not require witnessing in any jurisdiction, and, yet, all nonprobate instruments require signatures. Witnesses are not even required for the signing of a contract even though the legal standards for contractual capacity exceed that for testamentary capacity.

The Wills Act formalities has persisted probably because it creates many opportunities for others to contest the will on minor errors, thereby generating more income for both attorneys and the probate court. If the main objective of probate is to fulfill the testator's intent, as the law purports, then it makes no sense to invalidate a will simply because of minor errors, especially if the testator's intent was clear. A good example of this is swapped wills, which are wills separately prepared for each spouse, but where the spouses signed the other's will instead of their own. This often happens with testators who do not know English well and accidentally sign the wrong document. Under the common law, this invalidated both wills, even though it was usually clear what had happened and what the testators intended.

The modern trend has been to eliminate strict compliance with the Wills Act formalities and replace it with substantial compliance (UPC §2-503) and to overlook harmless errors.