The statutes of most states require that a will be signed by the testator, or by some one authorized to sign for him. A person not able to write may sign by mark. A person usually signs by mark as follows:John his X mark. Any mark made by the testator is sufficient. Most states require by statute that wills must be signed in the presence of two or three witnesses. These witnesses must be competent to understand the nature of the transaction. They need not necessarily be of legal age. They must affix their signatures as witnesses to the will. A beneficiary under the will should not be a witness. The witnesses of a will are required to observe the competency of the testator and his signature, in order that they may testify to these facts when the will is proven. The statutes of most states make it sufficient for the testator to acknowledge his signature in the presence of the witnesses. In this event, they need not see him sign his name to the will. The witnesses are usually required to sign the will in the presence of the testator, and in the presence of each other.
356. Publication of a Will. Some states provide by statute that to constitute a written instrument a valid will, the testator must acknowledge it to be a will at the time it is signed and witnessed. This act is known as publication. Some states do not have such a statutory provision. In the absence of statutory provisions, publication is not necessary. It is not necessary that the testator read or cause the will to be read to the witnesses to comply with the statutory requirements of publication. The witnesses must know that they are witnessing a will. Any word, expression or act on the part of the testator which notifies the witnesses that they are witnessing a will is a sufficient publication.
A requested B and C to visit his house in the evening and witness his will. They went to A's house, where A presented a document to them, which he signed in their presence, and which they signed as witnesses. A did not acknowledge that the instrument was a will. The court held this to be a sufficient publication. B and C had been informed that the instrument was A's will.
357. Contract to Make a Will. A person may enter into a contract to make a will which will bind his estate. The party with whom such a contract is made cannot force the other party to make a will, or prevent him from revoking a will if made, but he can bring an action for damages against such party's estate if the latter dies without leaving a will according to his agreement. A will can be revoked at the desire of the testator. Revocability is one of the essential features of a will. A party may bind himself by contract to make a will in favor of a certain person. This contract does not prevent such person from revoking the will if made, but it renders the person's estate liable for breach of contract. A, a boy of twenty-one years of age, was told by his father, B, that if he would continue to work for him until he was thirty-five years of age, he would will him a certain farm, A agreed to this proposition, and worked for his father until he was thirty-five years of age. B subsequently died, leaving a will by which the farm was given to another son. A was permitted to recover the value of the farm by suit.
These contracts require clear and convincing evidence to support recovery. A agreed to board, clothe, care for, and bury B, his father, in consideration of B's agreement to give A all his property. A fulfilled the terms of his contract. B died leaving a will by which his property was given to C. A was permitted to recover the value of the property by suit.
358. Holographic Wills. A holographic will is one written entirely in the handwriting of the testator. Such wills are sometimes called olographic wills. A minority of the states of this country recognize the validity of holographic wills. These wills need not be witnessed to be valid. An ordinary will may be printed, typewritten, or written by a person other than the testator. The testator must sign and publish the will, that is, he must acknowledge the instrument to be a will, in the presence of the attesting witnesses. In case of a holographic will, there need be no witnesses, acknowledgment, or publication, but the will must be entirely in the handwriting of the testator, and must be signed and dated by the testator himself.
In some jurisdictions, it is necessary that a holographic will be found among the testator's valuable papers, to constitute a valid will. A died and the following document was found among his valuable papers:
$100,000.00
Four years after my death, I hereby authorize my executors to pay Francis Penn one hundred thousand dollars.