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Wills – The Writing Requirement

Wills – The Writing Requirement

A written will is obviously required to be in writing. What the writing requirement really means is that the medium a will is written in must be sufficiently permanent. The medium must be permanent enough to provide a reliable record of the testator’s testamentary desires for the probate court. The classic example of a purported will not written in a permanent medium is a purported will written in the sand on a beach at low tide. That writing will be obliterated at high tide. On the other hand, there are many examples of mediums that are permanent enough. Some of the classic examples of a will written in a sufficiently permanent medium include a will written on a restaurant napkin, a will written on toilet paper, a will painted on a wall, and a will chiseled in stone.

Modern Mediums

As a practical matter, in most states, the writing requirement means a traditional writing on paper. At the start of the 21st century, it is still true that a purported will prepared on a computer must be printed out and hand signed by the testator in order to be a will. The electronic version, subject to easy alteration or deletion, is simply not regarded as sufficiently permanent to be a will.

In similar fashion, in most states, a videotape or videodisk is not a will. The making of a will may be taped or disked to provide proof of the testator’s testamentary capacity and intent, and proof of the proper execution of a written will, but the videotape or videodisk itself is not deemed to be a writing. In most states, speaking into a camera and recording a videotape or videodisk is not a will.

Integration

A will does not have to be in a single writing. A will may consist of several writings as long as the parts can be identified and joined together to form a consistent and coherent whole. The bringing together of the parts of a writing to form a consistent and coherent whole is known as integration. As practical matter, integration of a will is achieved by stapling each page of the will together in page number order.

Incorporation By Reference

Most states permit a will, by its terms, to include the text of another document. This is known as incorporation by reference. The document incorporated by reference must be in existence at the time of its incorporation (or, by statute in many states, in the case of a list of tangible personal property, at the time of the testator’s death). The document incorporated by reference must be described in the will and fit the description given in the will.

A Testator “Makes” a Will

Although a will may be handwritten, the formality of typing or printing is preferred. Although the text may be in any language or code, as long as it can be translated or decoded, standard written English with appropriate legal terminology is preferred. Finally, it is important to note that the testator need not write the will. A will is usually written by the testator’s attorney and/or the attorney’s legal assistants. The testator usually “makes” a will by adopting the pre-written words as his or her declaration of his or her testamentary desires.

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