Mutual Wills Package for Married Couple with Minor Children
Note: This summary is not intended to be an all-inclusive discussion
of the law of wills in Montana, but does contain basic and other provisions.
This summary does not discuss handwritten wills or the situation where
the testator cannot sign his or her name.
Who may make a will: An individual 18 or
more years of age who is of sound mind may make a will. 72-2-521.
Execution: A will must be in writing, signed
by the testator and signed by at least two individuals, each of whom signed
within a reasonable time after having witnessed the signing of
the will by the testator. 72-2-522.
Self-proved will: A will may be simultaneously
executed, attested, and made self-proved by acknowledgment by the testator
and affidavits of the witnesses, each made before an officer
authorized to administer oaths under the laws of the state in
which execution occurs and evidenced by the officer's certificate,
under official seal. The will you have found contains the self-proving
affidavit. 72-2-524.
Who may witness: An individual generally
competent to be a witness may act as a witness to a will. The
signing of a will by an interested witness does not invalidate the will
or any provision of it. 72-2-526.
Revocation by writing or act: A will or
any part of a will is revoked:
(a) by executing a subsequent will that revokes the previous
will or part expressly or by inconsistency; or
(b) by performing a revocatory act on the will if the testator
performed the act with the intent and for the purpose of revoking the will
or part of the will or if another individual performed the act in the testator's
conscious presence and by the testator's direction. For purposes of this
subsection (b), "revocatory act on the will" includes burning, tearing,
canceling, obliterating, or destroying the will or any part of it. A burning,
tearing, or canceling is a revocatory act on the will, whether or not the
burn, tear, or cancellation touched any of the words on the will. 72-2-528.
Separate writing identifying disposition of tangible personal
property:
(1) A will may refer to a written statement or list to dispose
of items of tangible personal property not otherwise specifically disposed
of by the will, other than money.
(2) To be admissible under this section as evidence of the
intended disposition, the writing must be signed by the testator and must
describe the items and the devisees with reasonable certainty.
(3) The writing may be:
(a) referred to as one to be
in existence at the time of the testator's death;
(b) prepared before
or after the execution of the will;
(c) altered by the testator after
its preparation; and
(d) a writing that has no significance
apart from its effect upon the dispositions made by the will. 72-2-533.
Contracts concerning succession:
(1) A contract to make a will or devise or not to revoke a will or devise or
to die intestate, if executed after July 1, 1975, may be established only
by:
(a) provisions of a will stating material provisions
of the contract;
(b) an express reference in a will to a contract
and extrinsic evidence proving the terms of the contract; or
(c)
a writing signed by the decedent evidencing the contract.
(2) The
execution of a joint will or mutual wills does not create a presumption
of a contract not to revoke the will or wills. 72-2-534.
Deposit of will with court in testator's lifetime:
A will may be deposited by the testator or the testator's agent with
any court for safekeeping, under rules of the court. The will must be sealed
and kept confidential. During the testator's lifetime, a deposited will
may be delivered only to the testator or to a person authorized in writing
signed by the testator to receive the will. A conservator may be allowed
to examine a deposited will of a protected testator under procedures designed
to maintain the confidential character of the document to the extent possible
and to ensure that it will be resealed and kept on deposit after the examination.
Upon being informed of the testator's death, the court shall notify any
person designated to receive the will and deliver it to that person on
request or the court may deliver the will to the appropriate court. 72-2-535.
Duty of custodian of will-liability: After the
death of a testator and on request of an interested person, a person having
custody of a will of the testator shall deliver it with reasonable promptness
to a person able to secure its probate and, if none is known, to an appropriate
court. A person who willfully fails to deliver a will is liable to any
person aggrieved for any damages that may be sustained by the failure.
A person who willfully refuses or fails to deliver a will after being ordered
by the court in a proceeding brought for the purpose of compelling delivery
is subject to penalty for contempt of court. 72-2-536.
Penalty clause for contest: A provision
in a will purporting to penalize an interested person for contesting the
will or instituting other proceedings relating to the estate is unenforceable
if probable cause exists for instituting proceedings. 72-2-537.
