15.1 Wills: Validity, Testamentary Capacity & Revocation

The Paralegal CORE Competency Exam (PCCE) tests wills as a vocabulary-and-validity skill. Domain 2 asks whether a writing is a will, whether the testator had testamentary capacity, and whether a later event revoked it. This is federal-and-general teaching. State statutes vary on witness counts, presence rules, holographic wills, and oral (nuncupative) wills. Learn the common pattern, then read the stem for a local statute. Do not treat any one state's will code as national law.

A person who dies with a valid will dies testate. A person who dies without one dies intestate (section 15.2). A will is ambulatory: it has no operative property effect until death and can be changed while the testator has capacity.

Will terminology

The person who makes the will is the testator (older materials say testatrix for a woman). The person nominated to collect assets, pay creditors, and distribute the estate is the executor. If there is no will, or the named executor cannot serve, the court appoints an administrator. Modern Uniform Probate Code (UPC) statutes use personal representative for both.

Classic gift labels still appear on exams:

• A devise traditionally is a testamentary gift of real property; the taker is a devisee.
• A bequest (or legacy) traditionally is a testamentary gift of personal property; the taker is a legatee or beneficiary.
• Modern UPC drafting often uses devise for any testamentary gift. If the stem says "devise of the house" or "bequest of the stock," use the classic split. If a quoted UPC statute says "devise," it may mean any gift by will.
• A specific gift identifies particular property ("my 2020 Honda").
• A general gift is usually a dollar amount paid from the estate generally ("$10,000 to my niece").
• A demonstrative gift is a general amount pointed at a fund ("$10,000 from my First Bank account").
• The residuary gift is whatever remains after specific, demonstrative, and general gifts, debts, taxes, and expenses. The residuary clause is the safety net. A will without an effective residue can create partial intestacy.

A codicil is a later instrument that amends a will. It must be executed with the same formalities as a will. A valid codicil republishes the will as of the codicil's date.

A holographic will is in the testator's handwriting. Many states allow it if the material provisions and the signature are in the testator's handwriting, even with no witnesses. Some states require the entire instrument to be handwritten. Some states do not recognize holographic wills at all. Do not treat holographs as universally valid.

A nuncupative (oral) will is spoken, often in a last illness. Many states restrict or abolish oral wills. Where they survive, they are typically limited to personal property, a modest value, dying declarations of soldiers or sailors, and prompt reduction to writing with witnesses. Never assume an oral "I want you to have the house" is a will of real property.

Formalities: the common attested-will pattern

An attested (formal) will generally requires:

1. A writing (not a purely oral statement, except the restricted nuncupative exception).
2. The testator's signature, or someone signing the testator's name in the testator's presence and at the testator's direction.
3. Typically two witnesses. States vary on whether witnesses must sign in the testator's line of sight, in conscious presence, or may later acknowledge. Some states require the testator to publish the will ("this is my will"). The UPC is more flexible than older common-law presence rules.

Interested witnesses — people who take under the will — are a classic trap. At common law an interested witness could void the will or the gift. Many modern statutes save the will but purge (or cut back to the intestate share) the interested witness's gift if there are not enough disinterested witnesses. A few jurisdictions have abolished the interested-witness rule. Flag the interest. Do not invent one national purge statute.

A self-proving affidavit is a notarized sworn statement by the testator and witnesses that formalities were followed. It is not a fourth validity element. A will can be valid without one. The affidavit lets the personal representative probate the will without dragging the witnesses into court years later. Missing a notary is not automatically fatal. Missing the testator's signature usually is.

Exam tell: writing + signature + two witnesses, unless the stem is a holograph the jurisdiction recognizes or a tightly restricted oral will.

Testamentary capacity

Testamentary capacity is a specialized, relatively low bar. At the time of execution the testator must be able to know:

1. The nature of the act — that the document is a will that operates at death.
2. The extent of property — a general sense of what the estate contains, not an audited inventory.
3. The natural objects of bounty — who the close family and expected heirs are.

The testator must also be able to form a rational plan connecting those three points. Age is typically 18. A few states historically allowed younger married or emancipated testators; do not invent a national minor-will rule.

Capacity is measured at execution, not at death. A person with dementia may execute during a lucid interval. Contract capacity and the ability to manage a checkbook are not the same test. A guardianship or conservatorship is evidence, not automatic incapacity to make a will.

Undue influence, fraud, and insane delusion

Formalities and baseline capacity can be present and the will still fail in whole or in part.

Undue influence is the substitution of another's volition for the testator's. Classic markers: a confidential relationship (caregiver, new companion, drafting helper), an unnatural disposition that cuts out the natural objects of bounty, the influencer's involvement in procuring the will, isolation, and the testator's vulnerability. Opportunity alone is not enough. A lawyer who drafts and also inherits is an ethics and evidence problem the supervising attorney must confront.

Fraud in the execution is tricking the testator about what the document is ("sign this medical form" that is actually a will). Fraud in the inducement is a lie that causes a particular gift ("your son is dead" when he is not). Fraud usually voids the tainted gift, not always the entire instrument.

An insane delusion is a false belief the testator adheres to against all evidence, and that belief causes a disposition. Eccentricity is not a delusion. A factually wrong but evidence-based mistake is not an insane delusion.

Trap. "Mom was old and forgetful" is not, by itself, lack of testamentary capacity. "The neighbor drove Mom to the lawyer and inherited everything, cutting out the children" is an undue influence fact pattern.

Revocation

A competent testator can revoke a will before death.

Physical act. Burning, tearing, canceling, obliterating, or destroying the will, with intent to revoke, revokes it. Accident without intent does not. Intent without a sufficient act does not. Some states recognize partial revocation by cancellation on the face of the will; others do not. Destroying a photocopy usually does not revoke the original.

Later will or codicil. A later will may expressly revoke prior wills ("I hereby revoke all prior wills and codicils") or revoke them by inconsistency to the extent the documents cannot stand together. A later will that disposes of only part of the estate may leave the earlier will intact as to the rest unless there is an express revocation clause.

Operation of law. In many states, divorce or annulment revokes dispositions and fiduciary nominations in favor of the former spouse (and sometimes the former spouse's relatives). The rest of the will stands. Remarriage to the same person may revive those provisions in some statutes. Marriage after a will, or the later birth of a child, can trigger omitted spouse or pretermitted child protections that give a forced share — that is not always a full revocation. States vary. Do not recite one national fraction.

Republication by codicil. A valid codicil republishes the will as of the codicil's date. That can pull a pre-marriage will forward, affect incorporation-by-reference questions, and show the testator still intended the will after a later event.

Dependent relative revocation (DRR) is a safety doctrine: if the testator revoked Will 1 only because of a mistaken belief that Will 2 was valid, a court may disregard the revocation and probate Will 1. Know the label; do not over-apply it.

Revival. If Will 2 revokes Will 1 and Will 2 is later revoked, does Will 1 come back? States split (yes automatically; no unless re-executed or republished; intent controls). If the stem does not give a statute, say revival is jurisdiction-specific.

Worked path. Testator executes a witnessed will leaving everything to a sibling. Years later the testator writes "VOID" across every page and burns the original, intending to die intestate. Revoked by physical act. If instead the testator executes a new will with a revocation clause, the first will is revoked by subsequent instrument. If the testator divorces a spouse named as sole beneficiary, many statutes revoke that gift by operation of law.

Term-swap. Testamentary capacity is the three-point will test. Undue influence is a coerced or substituted intent. Holographic is handwriting. Nuncupative is oral and widely restricted. A self-proving affidavit is probate proof, not a validity element. Republication is what a codicil does to the date of the will.