Last Will and Testament for Married person with Adult Children from Prior Marriage
Note: This summary is not intended
to be an all inclusive summary of the law of wills in Hawaii, but does
contain basic and other provisions. Handwritten wills or wills where the
testator cannot sign the will himself are not discussed.
Who may make will: An individual eighteen
or more years of age who is of sound mind may make a will. 560:2-501.
Execution of wills: A will must must be in writing,
signed by the testator and signed by at least two individuals, each of
whom signed within a reasonable time after the individual witnessed the
signing of the will by the testator.
A will that does not comply with the above 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.
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. 560:2-502.
Writings intended as wills, etc: Although
a document or writing does not comply with the law as to execution, the
document or writing is treated as if it had been executed in compliance
with that section if the proponent of the document or writing establishes
by clear and convincing evidence that the decedent intended the document
or writing to constitute:
(1) The decedent's will;
(2) A partial or complete revocation of the will;
(3) An addition to or an alteration of the will; or
(4) A partial or complete revival of the decedent's formerly revoked
will or of a formerly revoked portion of the will. 560:2-503.
Self-proved will: A will may be simultaneously
executed, attested, and made self-proved, by acknowledgment thereof 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. 560:2-504. The will you have found contains the required affidavit.
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, including any gift to or appointment of the witness. 560:2-505.
Choice of law as to execution: A written
will is valid if executed in compliance with Hawaii law, or if its execution
complies with the law at the time of execution of the place where
the will is executed, or of the law of the place where at the
time of execution or at the time of death the testator is domiciled,
has a place of abode, or is a national. 560:2-506.
Revocation by writing or by act:
(a) A will or any part thereof is revoked by:
(1) Executing a subsequent will that revokes the previous will
or part expressly or by inconsistency; or
(2) 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 or if another individual performed the act in
the testator's conscious presence and by the testator's direction.
For purposes of this paragraph, "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.
(b) If a subsequent will does not expressly revoke a previous will,
the execution of the subsequent will wholly revokes the previous will by
inconsistency if the testator intended the subsequent will to
replace rather than supplement the previous will.
(c) The testator is presumed to have intended a subsequent will
to replace rather than supplement a previous will if the subsequent will
makes a complete disposition of the testator's estate. If this presumption
arises and is not rebutted by clear and convincing evidence, the previous
will is revoked; only the subsequent will is operative on the testator's
death.
(d) The testator is presumed to have intended a subsequent will
to supplement rather than replace a previous will if the subsequent will
does not make a complete disposition of the testator's estate.
If this presumption arises and is not rebutted by clear and convincing
evidence, the subsequent will revokes the previous will only to
the extent the subsequent will is inconsistent with the previous
will; each will is fully operative on the testator's death to
the extent they are not inconsistent. 560:2-507.
Separate writing identifying devise of certain types of tangible
personal property: 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.
To be admissible under this section as evidence of the intendeddisposition,
the writing must be signed by the testator and must describe the
items and the devisees with reasonable certainty. The writing
may be referred to as one to be in existence at the time of the
testator's death; it may be prepared before or after the execution of the
will; it may be altered by the testator after its preparation;
and it may be a writing that has no significance apart from its
effect on the dispositions made by the will.
Contracts concerning succession: A contract
to make a will or devise, or not to revoke a will or devise, or to die
intestate, if executed after the effective date of this article, may be
established only by:
(1) Provisions of a will stating material provisions of the contract;
(2) An express reference in a will to a contract and extrinsic
evidence proving the terms of the contract; or
(3) A writing signed by the decedent evidencing the contract.
The execution of a joint will or mutual wills does not create a
presumption of a contract not to revoke the will or wills. 560:2-514.
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. 560:2-517.
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 either deliver it with reasonable
promptness to a person able to secure its probate or if none is known,
deposit it with an appropriate court. A person who knowingly and wilfully
fails to so deliver or deposit a will is liable to any person aggrieved
for any damages that may be sustained by the failure, and them court may
award treble damages. A person who wilfully refuses 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. Proceedings under
this section shall be brought in the probate proceeding relating to the
will. 560:2-516.
