Estate Planning: Wills, Trusts, and Estates Law (Wills)

A. Nature and Types of Wills

Definition of a Will: A Will is a legal document that expresses a person's wishes regarding the distribution of their property and other matters after their death.

Types of Wills:

Testamentary Will: This is the most common type of Will, executed in writing, signed, and witnessed according to legal requirements.

Holographic Will: A Will handwritten by the testator and signed without witnesses.

Nuncupative Will: An oral Will made in front of witnesses under specific circumstances.

Privileged Wills: Wills made by soldiers or mariners in active service or persons in imminent danger of death.

B. Legal Requirements for a Valid Will

Testator's Capacity: The person making the Will (testator) must be of sound mind, have the capacity to understand the nature and consequences of their actions, and be free from undue influence.

Age Requirement: The testator must be at least 18 years old (or a certain age specified by the governing law) to make a valid Will.

Written Form and Execution: A Will must be in writing, signed by the testator or by another person at the testator's direction in their presence, and witnessed by a certain number of competent witnesses.

C. Revocation, Alteration, and Revival of Wills

Revocation of Wills: A Will can be revoked by a subsequent Will, by burning, tearing, canceling, or destroying the original Will with the intent to revoke, or by operation of law (e.g., marriage or birth of a child).

Alteration of Wills: A Will can be altered or amended by making changes or additions to the original Will, which must be executed with the same formalities as the original Will.

Revival of Wills: A revoked Will can be revived by re-executing it with the same formalities as the original Will.

D. Grounds for Will Contests

Lack of Testamentary Capacity: If there is evidence that the testator lacked the mental capacity to make a Will at the time of its execution.

Undue Influence: If there is evidence that the testator was pressured or coerced into making the Will against their wishes.

Fraud or Forgery: If the Will was obtained through fraud or forgery.

Pretermitted Heirs: If the Will fails to provide for certain close relatives who would be entitled to a share of the estate under the laws of intestacy.

E. Interpretation and Construction of Wills

Role of the Court:The court interprets and construes the language of a Will to determine the testator's intent.

Plain Meaning Rule: The court gives effect to the plain meaning of the words used in the Will, considering the context and purpose of the document.

Technical Rules of Construction: Certain technical rules of construction may be applied to resolve ambiguities or interpret specific terms.

Extrinsic Evidence: Extrinsic evidence, such as the testator's circumstances and statements, may be considered to clarify the testator's intent.

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