Last Will and Testament for Married person with Minor Children
Note: This summary is not intended to be an all-inclusive
discussion of the law of wills in Oklahoma, 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
Persons Who May Make a Will: A. Every person over the
age of eighteen (18) years of sound mind may, by last will, dispose of
all his estate, real and personal. 41.
Person Subject to Guardianship or Conservatorship:
The appointment of a guardian or a conservator does not prohibit a person
from disposing of his estate, real and personal, by will; provided, that
when any person subject to a guardianship or conservatorship shall dispose
of such estate by will, such will must be subscribed and acknowledged in
the presence of a judge of the district court. The judge before whom the
will is subscribed and acknowledged shall attest to the execution of the
will but shall have neither the duty nor the authority to approve or disapprove
the contents of the will. Subscribing and acknowledging such will before
a judge shall not render such will valid if it would otherwise be invalid.
41.
Procurement of Will or Revocation by Duress, Menace, Fraud or
Undue Influence: A will or part of a will procured to be made
by duress, menace, fraud or undue influence, may be denied probate; and
a revocation procured by the same means, may be declared void. 43.
Property Acquired by Joint Industry:
1. Every estate in property may be disposed of by will except that a will shall be subservient
to any antenuptial marriage contract in writing. In addition, no spouse
shall bequeath or devise away from the other so much of the estate of the
testator that the other spouse would receive less in value than an undivided
one-half (1/2) interest in the property acquired by the joint industry
of the husband and wife during coverture. No person shall by will dispose
of property which could not be by the testator alienated, encumbered or
conveyed while living, except that the homestead may be devised by one
spouse to the other.
2. The spouse of a decedent has a right of election to take the
one-half (1/2) interest in the property as provided in paragraph 1 of this
subsection in lieu of all devises, legacies and bequests for the benefit
of the spouse contained in the last will and testament of the decedent.
3. If the surviving spouse desires to make the election provided
in paragraph 2 of this subsection to take the property specified therein
in lieu of all devises, legacies and bequests for the benefit of the surviving
spouse contained in the last will and testament of a decedent, then the
surviving spouse shall make such election affirmatively in writing, which
writing shall be filed in the district court in which the estate of the
decedent is being administered on or before the final date for hearing
of the petition for final distribution of the estate. The court clerk shall
immediately mail a copy of such election to the personal representative
of the estate and to all attorneys of record of the estate. Such written
election of the surviving spouse shall be in the form of a writing separate
from all other pleadings and documents filed in the district court in which
the estate is being administered. Failure of the surviving spouse to substantially
comply with the provisions of this subsection shall render the attempted
election by the surviving spouse void and of no force or effect; provided
that such failure shall not prohibit the surviving spouse from making a
subsequent election within the allotted time period, which substantially
complies with this subsection.
4. The right of election of the surviving spouse provided for in
paragraph 2 of this subsection is personal to the surviving spouse and
may be exercised only during the lifetime of the surviving spouse. However,
if there has been a guardian or conservator duly appointed by a court of
competent jurisdiction, and such court has judicially determined the surviving
spouse to be incompetent, then such guardian or conservator may make the
election on behalf of the surviving spouse, but only if the same is approved
by the court having jurisdiction over such guardian or conservator. Further,
a certified copy of the document or documents evidencing the appointment
of such guardian or conservator for the surviving spouse, and a certified
copy of the order of the applicable court approving such guardian's or
conservator's making such election on behalf of the surviving spouse, shall
be attached to the election, which shall also be in substantial compliance
with the provisions of paragraph 3 of this subsection, or such election
shall be void and of no force or effect. The guardian or conservator may
be appointed in any state, and may have been appointed at any time prior
to the expiration of the time permitted for the election to be made as
provided in paragraph 3 of this subsection. 44.
Persons Capable by Law May Take-Corporations Excepted:
A testamentary disposition may be made to any person capable by
law of taking the property so disposed of, except that no corporation can
take under a will, unless expressly authorized by its charter or by statute
so to take. 45.
Mutual Wills-Revocation: A conjoint or mutual will
is valid, but it may be revoked by any of the testators in like manner
with any other will. 52.
Execution of Wills: Every will shall be in writing;
and every will, must be executed and attested as follows:
1. It must be subscribed at the end thereof by the testator himself,
or some person, in his presence and by his direction, must subscribe his
name thereto.
2. The subscription must be made in the presence of the attesting
witnesses, or be acknowledged by the testator to them, to have been made
by him or by his authority.
3. The testator must, at the time of subscribing or acknowledging
the same, declare to the attesting witnesses that the instrument is his
will.
4. There must be two attesting witnesses, each of whom must sign
his name as a witness at the end of the will at the testator's request
and in his presence. 55.
Witness to Write Name and Place of Residence-Subscription of
Testator's Name by Direction: A witness to a written will must
write, with his name, his place of residence; and a person who subscribed
the testator's name, by his direction, must write his own name as a witness
to the will. But a violation of this section does not affect the validity
of the will. 56.
Execution According to Law of Place Where Made Validates Will
or Revocation: A will, or a revocation thereof, made out of this
state by a person not having his domicile in this state; is as valid when
executed according to the law of the place in which the same was made,
or in which the testator was at the time domiciled, as if it were made
in this state, and according to the provisions of this article. 71.
Will or Revocation Executed According to Law: No will
or revocation is valid unless executed either according to the provisions
of this article, or according to the law of the place in which it was made,
or in which the testator was at the time domiciled. 72.
Wills Deposited with Judge of the District Court-Procedure:
Every
judge of the district court must deposit in his office any will delivered
to him for that purpose, and give a written receipt to the depositor; and
must enclose such will in a sealed wrapper, so that it cannot be read,
and endorse thereon the name of the testator, his residence, and the date
of the deposit; and such wrapper must not be opened until its delivery
under the provisions of the next section. 81.
Deposited Wills-Delivery: A will
deposited under the provisions of the last section must be delivered only:
1. To the testator in person.
2. Upon his written order, duly proved by the oath of a subscribing
witness.
3. After his death, to the person, if any, name in the endorsement
on the wrapper of the will; or,
4. If there is no such endorsement, and if the will was not deposited
with the judge of the district court having jurisdiction of its probate,
then to the judge of the district court who has jurisdiction. 82.
Will Deposited with Judge-Duties Upon Death of Testator:
The
judge of the district court with whom a will is deposited, or to whom it
is delivered, must, after the death of the testator, publicly open and
examine the will and file in his office, there to remain until duly proved,
or to deliver it to the judge of the district court having jurisdiction
of its probate. 83.
Revocation or Alteration of Wills: No written will, nor
any part thereof, can be revoked or altered otherwise than:
1. By a written will or other writing of the testator, declaring
such revocation or alteration, and executed with the same formalities with
which a will should be executed by such testator; or,
2. By being burnt, torn, canceled, obliterated or destroyed, with
intent and for the purpose of revoking the same, by the testator himself,
or by some person in his presence and by his direction. 101.
Revocation of Prior Will by Subsequent: A prior will
is not revoked by a subsequent will, unless the latter contains an express
revocation, or provisions wholly inconsistent with the terms of the former
will; but in other cases the prior will remains effectual so far as consistent
with the provisions of the subsequent will. 105.
Revocation of Will Revokes Codicils: The revocation
of a will revokes all its codicils. 113.
Divorce or Annulment as Revoking Will: If, after making
a will, the testator is divorced, all provisions in such will in favor
of the testator's spouse so divorced are thereby revoked. Annulment of
the testator's marriage shall have the same effect as a divorce. In the
event of either divorce or annulment, the testator's former spouse shall
be treated for all purposes under the will as having predeceased the testator.
Provided, however, this section shall not apply if the decree of divorce
or of annulment is vacated or if the testator remarries his former spouse,
or following said divorce or annulment, executes a new will or codicil
which is not revoked or held invalid.
Bequest to Subscribing Witness Void: All beneficial
devises, legacies or gifts whatever, made or given in any will to a subscribing
witness thereto, are void unless there are two other competent subscribing
witnesses to the same; but a mere charge on the estate of the testator
for the payment of debts does not prevent his creditors from being competent
witnesses to the will. 143.
Share of Witnesses if Entitled to Share Without the Will:
If
a witness to whom any beneficial devise, legacy or gift, void by the preceding
section, is made, would have been entitled to any share of the estate of
the testator, in case the will should not be established, he succeeds to
so much of the share as would be distributed to him, not exceeding the
devise or bequest made to him in the will, and he may recover the same
of the other devisees or legatees name in the will, in proportion to and
out of the parts devised or bequeathed to them. 144.
