Chapter 14.20
WILLS
Sections:
14.20.010 Requirements for a valid will.
14.20.020 Incorporation by reference.
14.20.030 Events of independent significance.
14.20.040 Rules of construction and intention.
14.20.050 Revocation of will by writing or act.
14.20.060 Depositing will with Tribal Court.
14.20.010 Requirements for a valid will.
For the purposes of this Probate Code, the requirements of a valid will are as follows:
A. The person making the will must be 18 years or older and they must understand the nature of making a will and have a general idea of what property they own and to whom they wish to leave it upon their death, and are not unduly influenced by others.
B. Every will shall be in writing and signed by the testator or by some other person under the testator’s direction in the testator’s presence, and shall be attested by two or more competent adult witnesses, by subscribing their names and addresses to the will, or by signing an affidavit that complies with either State or Federal law, while in the presence of the testator and at the testator’s direction or request.
C. A competent adult witness is any person who, at the time of execution of the will, is at least 18 years of age and would be competent to testify as a witness in Tribal Court to the facts relating to execution. Subsequent incompetency of a witness is not a ground for denial of probate if the execution of the will is otherwise satisfactorily proved.
D. A will is not invalidated because it is signed by an interested witness; but unless the will is also signed by two disinterested witnesses, any beneficial provisions of the will for a witness or the witness’s spouse are invalid to the extent that such provisions in the aggregate exceed in value what the witness or spouse would have received had the testator died intestate. Valuation is to be made as of testator’s death.
E. A last will and testament, not executed pursuant to this code, but executed as prescribed by the law of the place where executed either at the time of the will’s execution or at the time of the testator’s death, shall be deemed to be legally executed, and shall be of the same force and effect as if executed as prescribed by this code. [Res. 2018-42 (20.2.1).]
14.20.020 Incorporation by reference.
Any writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. [Res. 2018-42 (20.2.2).]
14.20.030 Events of independent significance.
A will may dispose of property by reference to acts and events which have significance apart from their effect upon the disposition made by the will, whether they occur before or after the execution of the will or before or after the testator’s death. The execution or revocation of a will of another person is such an event. [Res. 2018-42 (20.2.3).]
14.20.040 Rules of construction and intention.
A. The intention of a testator as expressed in the testator’s will contains the legal effect of the testator’s dispositions;
B. The following rules of construction apply unless a contrary intent is clear in the will:
1. All Property – After Acquired Property. A will is construed to pass all property which the testator owns at their death including property acquired after the execution of their will;
2. Devisee must survive testator by 120 hours. A devisee who does not survive the testator by 120 hours is treated as if they predeceased the testator, unless the will of the decedent contains such language dealing explicitly with simultaneous deaths, including common disaster, or requiring that the devisee survive the testator for at least a stated period in order to take under the will;
3. Failure of Testamentary Provision. If a devise other than a residuary devised to two or more persons and the share of one of the residuary devisees fails for any reason, their share passes to the other residuary devisees, or to other residuary devisees in proportion to their interests in the residue;
4. Class Gifts. One who would have been a devisee under a class gift if they had survived the testator is treated as a devisee for purposes of this section whether their death occurred before or after the execution of the will;
5. Exercise of Power of Appointment. A general residuary clause in a will, or a will making general disposition of all the testator’s property, does not exercise a power of appointment unless specific reference is made to that power;
6. Generic Terms. Half-bloods, adopted persons and person born out of wedlock are included in class gifts terminology and terms of relationships in accordance with rules for determining relationships for purposes of intestate succession, but a person born out of wedlock is not treated as the child of the father unless the person is openly and notoriously so treated by the father or unless paternity has been judicially determined during the life of the father;
7. Ademption by Satisfaction.1 Property which a testator gave in their lifetime to a person is treated as a satisfaction of a devise to that person in whole or in part, only if the will provides for deduction of the lifetime gift, or the testator declares in a contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction. For the purpose of partial satisfaction, property given during the lifetime is valued as of the time the devisee came into possession or enjoyment of the property or as of the time of death of the testator, whichever occurs first. [Res. 2018-42 (20.2.4).]
14.20.050 Revocation of will by writing or act.
A will or any part thereof is revoked:
A. By subsequent valid will, codicil, or other instrument which revokes the prior will in whole or in part expressly or by inconsistency; or
B. By being burned, torn, canceled, obliterated, or destroyed with the intent and for the purpose of revoking it by the testator or by another person in the testator’s presence and at the testator’s direction. [Res. 2018-42 (20.2.5).]
14.20.060 Depositing will with Tribal Court.
A will may be deposited with the Tribal Court Clerk. The Clerk shall stamp and date the documents filed and seal the file in a secure locked file or place. To ensure the confidential and private contents of the file, the file shall be sealed in the presence of the testator or testatrix and by placing their signature upon the sealed closure.
The purpose of depositing wills with the Tribal Court Clerk is to provide a safe place. It is not required by this code that wills be deposited with the Tribal Court Clerk.
The acceptance of a will for safekeeping by the Tribal Court Clerk in no way ensures the validity of any of its provisions, nor does acceptance in any way enhance the force or effect.
Wills are sealed documents before the testator or testatrix dies and cannot be released except to the testator or testatrix upon proper identification and written request.
Any person, including an attorney in fact or guardian of the testator or testatrix, may withdraw the original(s) so filed only upon court order upon request and presentation of a certified copy of the testator’s or testatrix’s death certificate. [Res. 2018-42 (20.2.6).]
Ademption by satisfaction takes place when the testator, during his or her lifetime, gives to his or her heir all or a part of the gift he or she had intended to give by his or her will. It applies to both specific bequests and devises as well as to a general bequest or legacy payable from the general assets of the testator’s estate. If the subject of the gift made while the testator is alive is the same as the subject of a provision of the will, it is presumed that it is in place of the testamentary gift if there is a parent-child or grandparent-grandchild relationship.