functions for the formalities required in executing a will:
1. Ritual Functions: the court needs to be convinced that the statements of the transferor were deliberately intended to effectuate a transfer because people are often careless in conversation and informal writings.
a. In other words, dispositive effect should not be given to statements, which were not intended to have that effect.
b. The formalities of transfer therefore generally require the performance of some ceremonial for the purpose of impressing the transferor with the significance of his statements and thus justifying the court in reaching the conclusion, if the ceremonial is performed, that they were deliberately intended to be operative.
2. Evidentiary Function: the requirements of transfer may increase the reliability of the proof presented to the court. To the extent to which the quantity and effect of available evidence should be restricted by qualitative standards, is controversial.
a. Several difficulties arise with gratuitous transfers and these difficulties are entitled to especially serious consideration in prescribing requirements for the gratuitous transfers, because the issue of the validity of the transfer is almost always raised after the alleged transferor is dead; and therefore, the main actor is usually unavailable to testify, or to clarify or contradict other evidence concerning his all important intention.
b. At any rate, whatever the ideal solution may be, it seems quite clear that the existing requirements of transfer emphasize the purpose of supplying satisfactory evidence to the court.
3. Protective Function: some of the requirements of the statutes of wills have the stated prophylactic purpose of safeguarding the testator, at the time of the execution of the will, against undue influence or other forms of imposition.
A(1). G/R: Common Law Requirements: in most states, these minimum requirements, which were established at common law, are still required. The will must be:
1. in writing, whether it is attested or holographic;
a. caveat: some states allow non-curative wills (oral) in limited situations. 2. signed—all wills have to be signed by the testator; and
3. attested—witnessed in some shape or form.
a. Subscribing witnesses: Wyoming, and the UPC, require that the witnesses sign the will, as most do most jurisdictions;
b. The various between State statutes normally comes in the form of who must sign, when, where and what to be a competent witness.
A(2). Statute of Wills §9: The Wills Act: the statute of wills (an English statute which a lot of American statutes followed) provides that no will shall be valid unless:
1. it is in writing; and
2. executed in the following manner:
a. signed at the end by the testator (or by some other person in his presence at his direction);
b. witnessed by two persons present at the same time; and
i. The requirement that the witnesses be present at the same time to determine if the testator is of sound mind—to back up the idea of capacity.
c. the witnesses shall attest and sign in the present of the testator; but d. no form of attestation of shall be necessary.
*[In re Goffman][In Goffman, the witnesses did not sign at the same time and the court invalidated the will]
**3/4 of the states do not require dual witnesses to be present at the same time, Wyoming’s statute [§2-6-112, see below] does not specifically require two witnesses to sign at the same time.
B. W.S. §2-6-104: Law Governing Meaning and Effect: the meaning and legal effect of a disposition in a will is determined by the law of the state in which the will was executed, unless the will otherwise provides…
C. W.S. §2-6-112: Wyoming Will Requirements: except as provided in [the holographic will statute], all wills to be valid shall be:
1. in writing;
2. witnessed by two competent witnesses; and
a. any personally generally competent to be a witness may act as a witness to a will [W.S. §2-6-115].
3. and signed by the testator
D. W.S. §2-6-116: Validity of Execution: a written will is valid if executed in compliance with: 1. §2-6-112 (will requirements) or §2-6-113 (holographic will requirements); or
2. meets the requirements of the state in which it was executed; or 3. meets the requirements of the place where the person was domiciled. E. UPC §2-502: Execution; Witnessed Wills; Holographic Wills
(a) Except as provided in subsection (b) … a will must be: (1) in writing;
(2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction; and
(3) signed by at least two individuals, each of whom singed within a reasonable time after he witnessed either the signing of the will as described in paragraph (2) or the testator’s acknowledgement of that signature or acknowledgement of the will. (b) A will that does not comply with subsection (a) is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.
(c) Intent that the document constitute the testator’s will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator’s handwriting.
D. G/R: Presence Requirements: there are two tests the courts use to satisfy the “presence”