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Execution Of Wills

Every state has statutes prescribing the formalities to be observed in making a valid will. The requirements relate to the writing, signing, witnessing, or attestation of the will in addition to its publication. These legislative safeguards prevent tentative, doubtful, or coerced expressions of desire from controlling the manner in which a person's estate is distributed.

Writing Wills usually must be in writing but can be in any language and inscribed with any material or device on any substance that results in a permanent record. Generally, most wills are printed on paper to satisfy this requirement. Many states do not recognize as valid a will that is handwritten and signed by the testator. In states that do accept such a will, called a holographic will, it usually must observe the formalities of execution unless exempted by statute. Some jurisdictions also require that such wills be dated by the testator's hand.

Signature A will must be signed by the testator. Any mark, such as an X, a zero, a check mark, or a name intended by a competent testator to be his signature to authenticate the will, is a valid signing. Some states permit another person to sign a will for a testator at the testator's direction or request or with his consent.

Many state statutes require that the testator's signature be at the end of the will. If it is not, the entire will may be invalidated in those states, and the testator's property will pass according to the laws of descent and distribution. The testator should sign the will before the witnesses sign, but the reverse order is usually permissible if all sign as part of a single transaction.

Witnesses Statutes require a certain number of witnesses to a will. Most require two, although others mandate three. The witnesses sign the will and must be able to attest (certify) that the testator was competent at the time he made the will.

A sample will

Though there are no formal qualifications for a witness, it is important that a witness not have a financial interest in the will. If a witness has an interest, his testimony about the circumstances will be suspect because he will profit by its admission to probate. In most states such witnesses must either "purge" their interest under the will (forfeit their rights under the will) or be barred from testifying, thereby defeating the testator's testamentary plan. If, however, the witness also would inherit under the laws of descent and distribution should the will be invalidated, he will forfeit only the interest in excess of the amount he would receive if the will were voided.

Acknowledgment A testator is usually required to publish the will—that is, to declare to the witnesses that the instrument is his will. This declaration is called an ACKNOWLEDGMENT. No state requires, however, that the witnesses know the contents of the will.

Although some states require a testator to sign the will in the presence of witnesses, the majority require only an acknowledgment of the signature. If a testator shows the signature on a will that he has already signed to a witness and acknowledges that it is his signature, the will is thereby acknowledged.

Attestation An attestation clause is a certificate signed by the witnesses to a will reciting performance of the formalities of execution that the witnesses observed. It usually is not required for a will to be valid, but in some states it is evidence that the statements made in the attestation are true.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Alyce Faye Wattleton to Zoning - Further ReadingsWill - Howard Hughes And The Mormon Will, Requirements Of A Will, Execution Of Wills, Testator's Intent