10.1 Wills
Key Takeaways
- Testamentary capacity requires only that the testator understand the act, the property, the natural objects of bounty, and the plan of disposition — a lower bar than contract capacity
- Under the Uniform Probate Code a valid will needs a writing, the testator's signature, and two witnesses; a self-proving affidavit eliminates the need to locate witnesses at probate
- A will may be revoked by a subsequent instrument, by physical destruction with revocatory intent, or by operation of law (divorce revokes provisions favoring the ex-spouse, not the whole will)
- Undue influence requires coercion that destroys the testator's free agency — mere persuasion, affection, or opportunity is never enough
- A surviving spouse cannot be fully disinherited in most states: the elective share (one-third under the classic Uniform Probate Code approach) guarantees a minimum portion
A will (last will and testament) is a revocable, ambulatory document — it speaks only at death and can be changed at any time while the maker retains capacity. Estate Planning & Probate is one of the ten Knowledge Exam domains on the National Association of Legal Assistants (NALA) Certified Paralegal (CP) exam (7 points under the Effective 2024 specifications), and wills are its foundation.
Testamentary Capacity
The person making a will is the testator. Capacity has two components:
- Age — the testator must be an adult (18 in nearly all states; the Uniform Probate Code (UPC) uses 18).
- Sound mind — measured at the moment of execution by a four-part test. The testator must understand: (1) the nature of the act (that this document is a will), (2) the nature and extent of his or her property, (3) the natural objects of his or her bounty (who close family members are), and (4) the general plan of disposition (how the will connects the first three).
Exam trap: this standard is deliberately lower than contractual capacity. An elderly client with early dementia can still execute a valid will during a lucid interval. Capacity is judged at execution, not before or after.
An insane delusion — a fixed false belief with no factual basis whatsoever that actually controls the disposition — can invalidate the will or the affected gift. A mistaken belief supported by some evidence is not an insane delusion.
Execution Formalities
| Requirement | Typical rule (UPC approach) | Common exam trap |
|---|---|---|
| Writing | Will must be in writing (typed or printed is fine) | Oral instructions to a lawyer are not a will |
| Signature | Signed by the testator, or by another person at the testator's direction and in the testator's conscious presence | A proxy signer need not sign at the foot of the document |
| Witnesses | Two witnesses, each of whom saw the signing or the testator's acknowledgment, and who sign within a reasonable time | Two witnesses, not three — three is a minority rule |
| Witness competency | Witnesses should be disinterested (take nothing under the will) | Under UPC § 2-505 an interested witness does not void the will — traditional states instead purge the witness's excess gift |
An attestation clause below the signatures recites that all formalities were observed; it creates a presumption of due execution. A self-proving affidavit — sworn by the testator and witnesses before a notary at execution (UPC § 2-504) — lets the will be admitted to probate without tracking down witnesses later. Paralegals routinely prepare both, and a missing self-proving affidavit means subpoenaing witnesses years later.
Codicils
A codicil is a separate instrument that amends, rather than replaces, a will. It must be executed with the same formalities as a will (writing, signature, two witnesses). A valid codicil republishes the will as of the codicil's date, which can cure certain defects and re-set the date used for class gifts. Handwritten cross-outs and margin notes on the original accomplish nothing and invite litigation — supervise clients away from do-it-yourself edits.
Revocation
Three routes, and the exam tests all three:
- Subsequent instrument — a later will or codicil revokes the earlier will expressly, or by inconsistency to the extent of the conflict. A new will without a revocation clause revokes the old one only as to inconsistent provisions.
- Physical act — burning, tearing, canceling, or obliterating, done by the testator (or at the testator's direction and in the testator's presence) with intent to revoke. Accidental destruction revokes nothing.
- Operation of law — divorce typically revokes only the provisions favoring the former spouse (UPC § 2-804), leaving the rest of the will intact; marriage after executing a will may give the new spouse an omitted spouse share.
Dependent relative revocation: if the testator revokes on the mistaken assumption that a replacement disposition is valid, a court may disregard the revocation and probate the earlier will, on the theory the testator preferred it to intestacy. Revival of a revoked will generally requires re-execution or a demonstrated intent to revive.
Holographic and Nuncupative Wills
A holographic will is written in the testator's own handwriting and signed, with no witnesses required. Roughly half the states (including UPC states) recognize them; the material provisions must be in the testator's hand — a preprinted form with a few blanks filled in usually fails. A nuncupative will is oral, recognized in only a few states, and only in narrow circumstances (imminent peril of death, small amounts of personal property, historically soldiers and sailors).
Will Contests
Only an interested person — an heir who would take more on intestacy, or a beneficiary under a prior will — has standing. Grounds:
- Lack of testamentary capacity or insane delusion
- Improper execution (formality failures)
- Undue influence — influence so overpowering it substitutes the influencer's will for the testator's. Factors: a confidential relationship (caregiver, advisor), the beneficiary's active procurement of the will, an unnatural disposition, and the testator's weakened condition. When a beneficiary in a confidential relationship actively participates in drafting, many courts shift the burden to the will's proponent.
- Fraud — in the inducement (lies that cause the disposition) or in the execution (deception about the document itself).
A no-contest clause (in terrorem clause) forfeits the share of any beneficiary who contests and loses. Most states enforce it, but the UPC and many others refuse enforcement where the contestant had probable cause.
Disinheritance and the Spousal Elective Share
Anyone except a spouse can generally be disinherited, but the intent must be express — name the person and state the exclusion. Pretermitted (omitted) children born or adopted after the will's execution receive an intestate share unless the omission was intentional. A spouse is different: in separate-property states the elective share lets the surviving spouse elect against the will and take a statutory fraction — classically one-third of the estate (the modern UPC uses a sliding scale up to 50% of the augmented estate, which reaches non-probate transfers). Community-property states protect the spouse through the automatic one-half community interest instead.
Paralegal scenario: A long-term caregiver arranged for a new will leaving her the client's home, had her own attorney draft it, and drove the client to the signing. Every undue-influence factor is present — flag it for the supervising attorney before probate, not after.
Which of the following is NOT one of the four elements of the sound-mind test for testamentary capacity?
After a divorce, what happens to a will that leaves property to the testator's former spouse and the residue to the testator's sister?
A testator in a UPC state executes a will before two witnesses, one of whom is a beneficiary under the will. What is the effect?