Wills -- Execution of Wills

Formalities of wills

—(1) in writing, (2) signed by testator (or in testator’s presence and at his direction), (3) at least two witnesses

Writing signed by testator

• Entire will must be in writing (can be handwritten, if signature and witness requirements are met)

• Signed by testator (or by person in testator’s presence and at testator’s direction)

  • Location of signature—anywhere on document sufficient

  • Form of signature—execution by testator’s mark sufficient

Capacity of the Testator

—must be at least 18 years old and of sound mind

• Presumption—sufficient testamentary capacity; challenging party must prove lack of capacity by preponderance of evidence

• At time of executing will, testator must:

  • Be capable of exercising thought, reflection, and judgment

  • Know what she is doing and how she is disposing of property

  • Possess sufficient memory and understanding to comprehend nature and character of act

Witnesses

• Number—at least two

• Signatures

  • Signed in testator’s presence by two or more witnesses

    • No need for attestation clause but it is prima facie evidence of due execution o

  • Presence

    • Testator must be able to see witnesses sign will

    • Witnesses need not see testator sign; sufficient if testator acknowledges instrument

    • Witnesses need not sign in each other’s presence

• Age and competency—any person generally competent to be a witness may act as witness to will

Interest of witness

• Beneficiaries not disqualified as witnesses

• Signature by interested person does not invalidate will

Integration

—will consists of all pages present at execution and intended to be part of will

Compliance

—any will not complying fully with execution requirements is void

Holographic wills

—will completely handwritten and signed by testator is valid if other statutory will formalities met

“Self-proved will”

—by acknowledgement of testator and affidavits of witnesses before officer authorized to administer oaths under DE law

Codicils

—supplements that alter, amend, or modify will

1. Execution—same formalities as for will must be observed

2. Effect—republishes will as of date of codicil and may validate invalid will if referenced with sufficient certainty

Foreign wills and international wills

—must be in writing (in any language, by hand, or by any other means) and signed by or on behalf of testator; two witnesses, as well as person authorized to act regarding international wills, required

Will substitutes—methods of transferring property outside of probate

1. Property placed in trust

2. Deeds

3. Jointly held property with survivorship rights

4. Joint bank accounts

5. Payment to beneficiary on death

6. Life insurance

1. Property placed in trust

• Pour-over trust—will provision directing distribution of property to trust when event occurs

• Totten trusts—designation given to bank account in depositor’s name as “trustee” for named beneficiary

2. Deeds

—DE does now allow transfer-on-death (TOD) deeds for real property

3. Jointly held property with survivorship rights

—DE recognizes joint tenancies with right of survivorship and, for married couples, tenancies by the entirety

4. Joint bank accounts

—in DE, ownership of bank accounts as joint tenancies with right of survivorship is not favored; rebuttable presumption of ownership as tenants in common

5. Payment to beneficiary on death

—agreement to distribute property held under contract at death to named beneficiary (e.g., bank account with payable-on-death designation)

6. Life insurance

—beneficiary takes by virtue of insurance contract