A will must be in writing but there is an exception in case of a gift of personal property in one's last illness.
It is the general rule that a will must be in writing. There is one exception to this when a person makes a will of his personal property when he is in extremis in his last illness. Such an oral will of personal property is called a nuncupative will and was formerly a will permitted to be made by a soldier or sailor in extremis in respect to his personal property. By statute the right to make such a will has been extended to others but it is usually provided that there must be a certain number of witnesses present and they must reduce the will in writing in a certain number of days. Real property may never pass by such a will. Nuncupative wills are not favored by the law and are very rarely upheld. This is because of the opportunity for fraud in such cases.
108. Snell v. Weldon, 243 111. 406.
Aside from this exception the will must be in writing. This term includes typewriting or even printing.
Sometimes a reference is made in a will to another document and the testator attempts to make this other document a part of his will. This is called "incorporation by reference." In such a case the document does not become a part of the will unless it is clearly identified by the language of the will itself and is then in existence. Thus in the case of "Bryan's Appeal" 109 a testator left property to W. J. Bryan according to a document to be found among his papers. The court refused to make this document a part of the will because it was not clearly identified and it did not appear that it was in existence when the will was made.
A will must be signed by the testator or by some one for him in his presence and at his direction.
It is essential that the testator sign the will. If too weak to sign it another may sign it for him in his presence and at his direction, but otherwise the signature cannot be made by an agent. The signature may be in any form as by a cross where the testator cannot write or is too weak to do so.
It is essential that the will be witnessed by the number of witnesses provided by law.
109. 77 Conn. Rep. 26b.
A will must be witnessed. In one or two states a holographic will need not be witnessed but in all other cases, and in most states in all cases, the will must be witnessed. A will should not be witnessed by beneficiaries or executors and if it is witnessed by a beneficiary the beneficiary cannot take under the will. It is very essential therefore that completely disinterested parties witness the will.
It is not necessary that the witness read the will.
The will must be witnessed in the presence of the testator. Some cases hold that this means in the uninterrupted range of the testator's vision, that is, the witnesses must be in such a position that he can see them sign, provided he cares to do so.110 They must not go into an adjoining room or put any barrier between the testator's vision and themselves. An exception would be made of course in the case of a blind person. It follows therefore that witnesses cannot sign elsewhere even though they acknowledge the signature in the testator's presence. The testator may acknowledge his signature to the witnesses but the witnesses must actually sign in the testator's presence.
The attestation clause is a clause signed by the witnesses asserting the publication of the will and their act of witnessing it at the testator's request
A form of attestation clause appears in the appendix. It is much better practice to have such a clause, but it is not indispensable and a will is properly witnessed if the witnesses merely sign their names thereupon.
110. Drury v. Connell, 177 Hi. 43.