Wills Part I

Execution of Wills: 3 Requirements for a validly executed will

o Signed by testator (must be at least 18)
o Must have two attesting witnesses
o Each witness must witness the testators signing of the will; or testators acknowledgment of his
earlier signing; or testators acknowledgement of the will
Other Notes:
o As long as it was the testators volitional act it does not matter if she got help
o Any mark can suffice as a signature
o Witnesses do not have to sign in each others presence
o Witness does not have to know they are serving as a witness to a will
Problem Cannot locate either witness or if both witnesses died
o Harmonious situations where no likelihood that will is going to be contested
7 days notice to heirs and devisees ex parte proceeding held before court or
magistrate who admits will to probate without further proof if it appears will has been
validly executed
Required signatures
Contains an attestation clause
Within 30 days of informal probate will proponent must give notice by publication
stating that the estate is being administered under informal procedure
o Formal Testacy Proceeding If petition for probate is unopposed court may order probate of
will on strength of the pleadings
If opposed Testimony or sworn statement of one attesting witness is required may
be proved by other evidence
Interested Witness Statute
o Interested witness situation never affects the validity of the will
o A bequest to an attesting witness or the witnesss spouse is void unless
There were two disinterested witnesses
The interested witness establishes that the bequest was not inserted and will was not
signed as a result of fraud or undue influence by the witness
Burden on proof of Interested Witness
Holographic Wills Wills that are in testators handwriting and signed, but not witnessed
o MA does not recognize holographic wills
o But a will executed in another state is admissible to probate in MA if executed in accordance
with MA law, execution law (where it was executed) or domicile law (where testator was
domiciled when signed or at death
Revocation of Wills
o Wills can be revoked:
1) By a subsequent testamentary instrument, executed with appropriate formalities
2) By a revocatory act on the will

3) By a subsequent testamentary instrument that revokes a previous will by
inconsistency
o Act must be performed by testator with the intent and purpose of revoking the will or part of it
or performed by another person at testators direction and in his presence
o If will was destroyed it will be probated by the proof of lost will statute
Proof of due execution (testimony of one attesting witness or other evidence)
Cause of wills nonproduction must be proved
Proof of wills contents (can be secondary evidence ((Xerox copy))
Any oral testimony must be strong, positive and free from doubt
Revival of revoked wills A revoked will is not revived unless the will is still in existence and there is
evidence from the circumstances or testators contemporaneous or subsequent statements that the
testator intended to revive the earlier will
Dependent Relevant Revocation Permits a revocation to be disregarded when the act of revocation
was premised upon, conditioned upon, dependent upon, a mistake of law or fact as to the validity of a
nother disposition