Lecture 4 - Wills Continued

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Apr 3, 2024

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PLEG155 - Lecture 4 – Wills Continued PLEG155 Lesson 1 – Basic Requirements We are continuing to examine topics related to Wills. The legal requirements vary from state to state regarding the policies and procedures for drafting a basic will. Also, the requirements vary according to the will a testator is creating as to the form and components. For a basic will, it must be in writing and include the testator's signature in front of at least two witnesses. Even simple wills can add provisions for a trust or a guardian for children. Last, as a paralegal, it is critical to understand the significance of collecting documents during the initial conference with the client and the intake questionnaire. Let's begin! Please watch the following 3 minute, 14-second video explaining the necessary requirements for creating a will in Virginia by Tingen Law. The video analyzes the requirements and conditions to ensure a will is valid. As you watch the video, please consider the following:  Examine the importance of a self-proving application.  Identify the four requirements for a valid will in Virginia. Click on the following link to watch:  What is Required to Make a Will in Virginia? Video Takeaway In Virginia, a will must include the signatures of two witnesses to be valid. To avoid presenting testimony before a probate court, witnesses may sign a self-proving affidavit attesting they saw the testator sign the will. The four requirements for a legal will under Virginia's probate laws are that the will is in writing and the testator is at least 18 years old, with testamentary capacity in front of witnesses. Topic 1: Formal Requirements Formal requirements include age, legal capacity, and naming the executor to create a valid will. Further, the creation of the will must be voluntary,

PLEG155 - Lecture 4 2 identifying assets and property owned by the testator and any beneficiaries. Depending on the type of will, most states require a will to be in writing and signed by witnesses. Legal Capacity A person must be of legal age to make and sign a will. Also, they will need to prove they are competent and have a sound mind to make a will. A testator can establish their mental capacity through an attorney, physician, witness statements, or the testimony of a notary. They must demonstrate that they understand what they include in the will. Age of Majority States recognize a person reaching the age of majority as being an adult. For individuals to draft a will, most states require individuals to be of the legal majority age, which is 18 years old. A limited number of states require the age to create a will to be 19 years old. Some state statutes provide exceptions to the rule allowing minors to make valid wills. Capacity Standard if Married/in the Military/Legally Emancipated At least three exceptions are common among states to the age requirement. First, states allow minors to create a will if they are married. Another exception to the age requirement is for those in the armed forces. Last, an emancipated minor who can legally sign documents without the consent of their parents or guardians is an exception to the capacity standard. Treatment of Minors Usually, individuals under 18 are unable to create a will. Furthermore, minors typically can only be beneficiaries in a will once they reach the age of majority. Nonetheless, a minor can make a will and even modify or, in some circumstances, revoke a will under limited exceptions. These exceptions involve being married, in the military, or given emancipation. Voluntarily Intend to Dispose of Property State laws guide wills and any requirements about the testator's acting on their own voluntarily. The person must not be under undue influence or coerced by anyone else to draft the will, designate any property, or name a specific beneficiary. The testator's actions must be that they are knowingly and freely making decisions about what provisions to include in the will. The signing of the will must also be voluntary.

PLEG155 - Lecture 4 3 Signed, Dated, Witnessed Witnesses attest to knowing the testator and their mental capacity and act of voluntarily signing the will. Most states require two witnesses over 18 and a neutral party not benefiting from the will. Further, the date of the will is a reference to the actual date the testator signs the will. Once the will is complete, the testator and the two witnesses voluntarily sign for the will to be effective. Topic 2: Testamentary Capacity Testamentary capacity refers to whether the testator is of legal age and has the requisite mental competencies. Per state law, a testator must understand the range and scope of their assets and property before making a will. Furthermore, they need to comprehend that they are signing a legal instrument. Please review the article titled Wills-Testamentary Capacity and Undue Influence by Christopher Berry that analyzes real-world circumstances in which there was a belief of a lack of testamentary capacity. Examine the examples of undue influence and testamentary capacity, and consider the following:  Determine whether a will can be challenged for lack of testamentary capacity.  What strategy can be used to prove the testator has testamentary capacity?  How is testamentary capacity impacted by undue influence? Click on the following link to review explanations of commonly used terms in reference to testamentary capacity and undue influence.  Wills-Testamentary Capacity and Undue Influence Article Takeaway Challenging the validity of a will is possible if the testator lacked testamentary capacity. One can use a strategy to demonstrate that the testator had the necessary mental capacity at the time he created the will. As such, someone can give a quiz to the testator regarding the date or current events. This assessment will demonstrate that the testator is of sound mind and aware of his surroundings. In situations with undue influence, the testamentary capacity is exploited or controlled by another person for their benefit.

PLEG155 - Lecture 4 4 Mental Ability When creating a will, a testator must have the mental ability to understand the provisions, known as testamentary capacity. A mentally incompetent person cannot sign a legally valid will. This concept often refers to a person having a sound mind and a memory to distribute assets and designate beneficiaries. Ability to Make a Valid Will A testator must have the testamentary capacity when they make the will. As such, a person may become incapacitated or develop symptoms of dementia after drafting the will. However, the testator must comprehend the general essence of creating a will and a memory when they made the will. Once complete, subsequent actions to the testator's mental capacity do not impact the will's validity. The testator would be unable to modify or revoke the will if they lack the testamentary capacity. Understand the Property That They Own and Who Their Beneficiaries Are One key aspect of testamentary capacity is understanding that property is for distribution to beneficiaries. One must know the beneficiaries who will inherit property upon death. A probate court will only process a will if the testator understands the property owned and any heirs. Thus, the state will determine who may inherit the deceased's property when the person dies, depending on the intestate succession laws. Lesson 1 Completed! Thank you! You have completed this lesson. Please scroll down to complete a short, ungraded Knowledge Check activity. Check Your Knowledge 1 1. Most states require individuals to be of the legal majority age, which is 21. Answer: False 2. Challenging the validity of a will is not possible . Answer : False 3. The date of the will is a reference to the actual date the testator signs the will. Answer: True

PLEG155 - Lecture 4 5 Lesson 2 - Drafting and Execution of a Will/Use of Forms/Special Clauses Drafting a will differs from executing a will. Drafting involves documenting the testator's wishes in a legal instrument. Most individuals hire an attorney to draft a will to guarantee they include all necessary provisions to ensure their wishes are honored. The execution of a will is when the testator and the two witnesses sign the will attesting to its authenticity. Last, the conditions for special clauses, format, and content to include in a will varies from state to state. Topic 1: Last Will and Testament Template A small number of states provide statutory templates for residents to create a will. Whereas in most states, laypersons use fillable templates to draft wills. Last Will and Testament templates are common as they are simple to use, include instructions that are easy to follow, and allow a testator to fill in the blanks. Most important, the templates for basic wills aid testators in protecting their property and beneficiaries upon death. Please watch the following 3 minute, 39-second video explaining the procedure for completing a Last Will and Testament electronically by PDFRun. The video outlines the eight different sections that are typically required when using a Last Will and Testament template. As you watch the video, please consider the following:  Examine the requirements for an executor or personal representative.  Identify which properties to list as assets. Click on the following link to watch:  How to Make and Fill Out A Last Will and Testament Online | PDFRun Video Takeaway The executor or personal representative must have reached the age of majority (18 years of age) with no record of a felony conviction. Common assets to include in a will are personal possessions and real estate. Statutory Template State legislators create statutory forms based on state law with the requisite content and format. As such, States provide statutory Forms for their residents, including specific language and provisions for a will to be valid. The forms are usually free or have a minimal feel to download online or accessed through the local probate courts. As such, a benefit of using

PLEG155 - Lecture 4 6 statutory templates is the cost and the guarantee that they meet the requirements of probate courts (Helewitz, 2019). Fill-in-the-blank Forms Fill-in-the-blank forms are very popular for completing wills and are considered binding legal documents. Many for-profit and nonprofit organizations and government agencies provide public fillable documents such as wills. The forms are a simple way for testators to add information about their assets, property, beneficiaries, and final wishes. Additional estate planning forms are usually available for a trust, advance directives, and power of attorney. Electronic Software Electronic software is a digital way to capture and submit data conveniently. The software programs are web-based templates. Electronic wills allow testators to customize their information using a fill-in-the-blank method. Testators have the opportunity to type their information and also to sign their names. Furthermore, such documents permit witnesses to add their signatures, attesting they were present during the testator's signing. Topic 2: Proper and Valid Signatures For wills to be legal and valid, they must include the signatures of the testator and the two witnesses. Some states allow a representative of the testator under their direction and in front of witnesses. Probate courts do not recognize a will as valid without a properly valid signature. A testator's signature on a will implies that these are their final wishes upon death. State Specific Signature Requirements Some states mandate the testator to sign on the last page. In contrast, other states are not particular where the testator signs. An additional requirement for some states requires one to initial each page of the will. State guidelines provide for individuals who cannot write and allow them to use an x-mark on the line for their signature. Witness Attestation(s)/Attestation Clause For the most part, witnesses must be competent. Also, a witness will have to attest the testator met all requirements for the will, including their signature. This extra requirement is through the use of an attestation clause. As such, they must watch the testator sign the will. Additionally, many states require witnesses to sign a witness attestation along with a notary signifying.

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