Oregon Last Will and Testament Law

Wills and Estates – Last Will and Testament Law – Oregon

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 hand written 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

Legislative History: 1969 c.591 § 36

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

Legislative History: 1973 c.506 § 11

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

Legislative History: 1969 c.591 § 37; 1973 c.506 § 7; 1981 c.481 § 4

112.237 has been repealed.

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

Legislative History: 1969 c.591 § 38; 1973 c.506 § 8

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

Legislative History: 1969 c.591 § 39; 1981 c.481 § 5

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

Legislative History: 1969 c.591 § 40; 1999 c.132 § 1

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

Legislative History: 1973 c.506 § 13

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

Legislative History: 1997 c.151 § 2

Revival of revoked or invalid will: If a will or a part thereof has been revoked or is invalid, it can be revived only by a re-execution of the will or by the execution of another will in which the revoked or invalid will or part thereof is incorporated by reference. 112.295.

Legislative History: 1969 c.591 § 43

Encumbrance or disposition of property after making will: An encumbrance or disposition of property by a testator after the testator makes a will does not affect the operation of the will upon a remaining interest therein that is subject to the disposal of the testator at the time of the death of the testator. 112.335.

Legislative History: 1969 c.591 § 47