Last Will and Testament for Divorced Person Not Remarried with Adult and Minor Children
Note: This summary is not intended to be an all-inclusive
discussion of the law of wills in Oregon, but does contain basic and other
provisions. A discussion of handwritten wills is not included.
Who may make a will: Any person who is 18 years of
age or older or who has been lawfully married, and who is of sound mind,
may make a will. 112.225
Local law of state selected by testator controlling unless against
public policy: The meaning and legal effect
of a disposition in a will shall be determined by the local law of a particular
state selected by the testator in the instrument of the testator unless
the application of that law is contrary to the public policy of this state.
112.230
Execution of a will: A will shall be in writing
and shall be executed with the following formalities:
(1) The testator, in the presence of each of the witnesses, shall:
(a) Sign the will; or
(b) Direct one of the witnesses or some other person to sign thereon the name
of the testator; or
(c) Acknowledge the signature previously made on the
will by the testator or at the testator's direction.
(2) Any person who signs the name of the testator as provided in subsection (1)(b) of this
section shall sign the signer's own name on the will and write on the will
that the signer signed the name of the testator at the direction of the
testator.
(3) At least two witnesses shall each:
(a) See the testator sign
the will; or
(b) Hear the testator acknowledge the signature on the will;
and
(c) Attest the will by signing the witness' name to it.
(4) A will executed in compliance with the Uniform International Wills Act shall be deemed
to have complied with the formalities of this section. 112.235
Witness as beneficiary: A will attested by an
interested witness is not thereby invalidated. An interested witness is
one to whom is devised a personal and beneficial interest in the estate.
112.245
Validity of execution of a will:
(1) A will is lawfully executed if it is in writing, signed by or at the direction of
the testator and otherwise executed in accordance with the law of:
(a) This state at the time of execution or at the time of death of the testator;
or
(b) The domicile of the testator at the time of execution or at the time
of the testator's death; or
(c) The place of execution at the time of execution.
(2)
A will is lawfully executed if it complies with the Uniform International
Wills Act. 112.255
Testamentary additions to trusts:
(1) A devise may be made by a will to the trustee or trustees of a trust, regardless
of the existence, size or character of the corpus of the trust, if:
(a) The trust is established or will be established by the testator, or by
the testator and some other person or persons, or by some other person
or persons;
(b) The trust is identified in the testator's will; and
(c) The
terms of the trust are set forth in a written instrument, other than a
will, executed before, concurrently with, or after the execution of the
testator's will, or in the valid last will of a person who has predeceased
the testator.
(2) The trust may be funded during the testator's lifetime
or upon the testator's death by the testator's devise to the trustee or
trustees. The trust may be a funded or unfunded life insurance trust, although
the trustor has reserved any or all of the rights of ownership of the insurance
contracts.
(3) The devise shall not be invalid because the trust:
(a) Is amendable or revocable, or both; or
(b) Was amended after the execution
of the testator's will or after the death of the testator.
(4) Unless the testator's will provides otherwise, the property so devised:
(a) Shall not be considered to be held under a testamentary trust of the testator, but
shall become a part of the trust to which it is given; and
(b) Shall be administered and disposed of in accordance with the provisions of the instrument
or will setting forth the terms of the trust, including any amendments
thereto made before or after the death of the testator, regardless of whether
made before or after the execution of the testator's will.
(5) Unless the testator's will provides otherwise, a revocation or termination of the
trust before the death of the testator shall cause the devise to lapse.
(6) This section shall not be construed as providing an exclusive method for
making devises to the trustee or trustees of a trust established otherwise
than by the will of the testator making the devise.
(7) This section shall be so construed as to effectuate its general purpose to make uniform the
law of those states that enact the same or similar provisions. [1969 c.591
s.40; 1999 c.132 s.1] 112.265
Procedure to establish contract to make will or devise or not
to revoke will or devise:
(1) A contract to make a will
or devise, or not to revoke a will or devise, or to die intestate, executed
after January 1, 1974, shall 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. 112.270
In terrorem clauses valid and enforceable; exceptions:
(1) Except as provided in this section, an in terrorem clause in a
will is valid and enforceable. If a devisee contests a will that contains
an in terrorem clause that applies to the devisee, the court shall enforce
the clause against the devisee even though the devisee establishes that
there was probable cause for the contest.
(2) The court shall not enforce
an in terrorem clause if the devisee contesting the will establishes that
the devisee has probable cause to believe that the will is a forgery or
that the will has been revoked.
(3) The court shall not enforce an in terrorem
clause if the contest is brought by a fiduciary acting on behalf of a protected
person under the provisions of ORS chapter 125, a guardian ad litem appointed
for a minor, or a guardian ad litem appointed for an incapacitated or financially
incapable person.
(4) For the purposes of this section, “in terrorem clause”
means a provision in a will that reduces or eliminates a devise to a devisee
if the devisee contests the will. 112.272
Express revocation or alteration:
(1) A will
may be revoked or altered by another will.
(2) A will may be revoked by
being burned, torn, canceled, obliterated or destroyed, with the intent
and purpose of the testator of revoking the will, by the testator, or by
another person at the direction of the testator and in the presence of
the testator. The injury or destruction by a person other than the testator
at the direction and in the presence of the testator shall be proved by
at least two witnesses. 112.285
Revocation by marriage: A will is revoked by
the subsequent marriage of the testator if the testator is survived by
a spouse, unless:
(1) The will evidences an intent that it not be revoked
by the subsequent marriage or was drafted under circumstances establishing
that it was in contemplation of the marriage; or
(2) The testator and spouse
entered into a written contract before the marriage that either makes provision
for the spouse or provides that the spouse is to have no rights in the
estate of the testator. 112.305
Revocation by divorce or annulment: Unless a
will evidences a different intent of the testator, the divorce or annulment
of the marriage of the testator after the execution of the will revokes
all provisions in the will in favor of the former spouse of the testator
and any provision therein naming the former spouse as executor, and the
effect of the will is the same as though the former spouse did not survive
the testator. 112.315
