CALI - Revocation Flashcards
Paul is seventeen years of age. Last year, Paul’s grandmother died leaving him a parcel of realty worth $250,000. Paul, wanting to leave the realty to his brother, Jim, when he dies, executed a will devising his entire estate to Jim.
Assuming the will complies fully with all formalities required by law, can the will be admitted to probate?
No.
Even though Paul may be very mature for his age and understand fully the nature and consequences of his act, U.P.C. section 2-501 requires that Paul be eighteen or more years of age and of sound mind to make a will. Since Paul was only seventeen, the will is invalid. Paul could, after he reaches age eighteen, execute a codicil which republishes his will. That would validate it and allow it to be admitted to probate.
Garrey broke his left arm and hand in a skiing accident. Because Garrey is left-handed, he was unable to sign any documents. When Garrey went to his attorney’s office to sign his will his friend, Tiffany, accompanied him. During the execution ceremony, Garrey asked Tiffany to sign his name to his will. Tiffany did so and then the will was signed by two witnesses. Will Garrey’s will be admitted to probate upon his death?
Yes.
Yes is correct. U.P.C. section 2-502(a)(2) permits another person to sign the testator’s name as long as the signing is in the testator’s conscious presence and by the testator’s direction.
Jean’s attorney prepared a will for her. Jean signed the will at her attorney’s office and took it with her to have it witnessed. On separate occasions, she told two friends that it was her will and asked them to sign it as witnesses. They each did so.
Under these circumstances, should Jean’s will be admitted to probate upon her death?
Yes because her will was properly executed.
Jean signed the will and she acknowledged that it was her will to two friends both of whom signed the will as witnesses. Under U.P.C. section 2-502(a), the will should be admitted to probate.
Same facts as above but Jean took the will once she signed it and without using any witnesses, she acknowledged it before a notary public. Is this a valid will?
Yes.
The 2008 Amendments to the UPC for the first time contemplate to the execution requirements can be complied following the testator’s signature by either witnesses or by the following language “acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments.” See § 2-502 (a)(3)B).
Does it make any difference to the validity of the will that it was not dated?
No.
U.P.C. section 2-502 has no requirement that the will be dated. It is considered good practice to date a will, however, since it can be helpful if an issue of testamentary capacity arises of if there are multiple testamentary instruments and resolution of the question of which is the later instrument becomes important.
In the foregoing questions, would the will be admissible if one witness took it into an adjoining room to execute it and that the other witness took it to her office the next day where she signed it?
Yes.
U.P.C. section 2-502 does not require that the witnesses sign in the presence of the testator and requires only that they sign within a reasonable time after the witness witnessed the signing of the will or its acknowledgment by the testator.
Linda’s will leaves all of her property to charity. Linda signs the will at her attorney’s office. She then takes the will to work with her the next day and asks her assistant, Monica, to sign the will as a witness. Monica takes Linda’s will out to her desk, signs it and returns it to Linda. Linda then immediately takes her will into her boss’ office and asks her boss to witness her will. Her boss signs the will in front of Linda. Is Linda’s will validly executed?
Yes.
UPC section 2-502(a)(3) does not require the witnesses to sign the will at the same time that the testator signs, nor does it even require that they sign in the testator’s presence. The witnesses must sign within a reasonable time after they witness one of three things:
1) the actual signing;
2) the testator’s acknowledgement of her signature; or
3) the testator’s acknowledgement that it is her will. Both Monica and Linda’s boss witnessed Linda’s acknowledgement of her will and each signed immediately. It does not matter that Monica signed the will outside the presence of Linda.
What if Linda had her assistant sign the will the next day, and then took the will to her boss, acknowledged to him that this was her signed will, and asked him to sign it as a witness. Her boss said he would sign it when he had time. He put the will in his desk drawer and did not get around to signing it until 12 months later. Would Linda’s will be validly executed?
No.
UPC section 2-502(a)(3) requires that the witnesses sign within a reasonable time of witnessing the testator’s signing of her will or acknowledgement of her signature or acknowledgement of her will. Linda acknowledged her will and signature to her boss but it is very likely that a twelve-month time lapse will not meet the requirement that he sign within a reasonable time.
Carol executed a will, which left her entire estate to her sisters, Amy and Laura, equally. The will was witnessed by her sister, Amy, and by a friend. Carol was survived by Amy and Laura as her only kindred.
Under these circumstances, the court should:
Admit the will to probate and distribute the estate to Amy and Laura, equally.
While some jurisdictions do strip an interested witness of their gift in order to validate the will, U.P.C. section 2-505 provides that the signing of a will by an interested witness does not invalidate the will or any provision therein.
Even so, use of an interested witness should be avoided in order to eliminate any questions about the validity of the will in non-U.P.C. jurisdictions and to eliminate questions of undue influence.
Carl wrote the following on the back of an envelope: “When I die, I, Carl Williams, want all my belongings to go to my sister, Alice. Signed Carl Williams” Carl recently died and Alice has asked the court to admit the writing on the envelope to probate as Carl’s will.
The court should:
Admit the will to probate as a valid holographic will.
U.P.C. section 2-502(b) provides that a will which does not comply with the requirements for a written, attested will may be admitted to probate if it is signed and the material provisions are in the handwriting of the testator. Since there is no requirement that the signature be at the end, the signature may be placed in the body of the instrument if done with intent to authenticate the document. Incidentally, a “signature” can be a mark, initials or a nickname. The will should be admitted to probate.
Suppose that, in the foregoing question, the testator crossed out the words “ . . . my sister, Alice” and wrote above it “my brother, John.” The testator did not sign or initial the change.
Should the court give effect to the change made by the testator?
Under U.P.C. section 2-503, the court may use its dispensing power to validate the change where it is established by clear and convincing evidence that the decedent intended the writing to constitute an alteration of the will. Since they are in the handwriting of the decedent and there are no facts showing fraud, duress or undue influence, it is quite likely that the will, as changed, will be admitted to probate.
Emily executed a valid written and attested will. Several years later, Emily decided she did not want the beneficiaries to take her estate and wrote “Revoked” across the top of the first page of the will. The word “Revoked” did not touch any of the writing of the will and Emily did not sign or initial at the time she wrote “Revoked.” Upon Emily’s death, is the will admissible to probate?
Under 2-507(a)(2), Emily is permitted to revoke her will by a revocatory act on the will. Such acts include burning, tearing, canceling, obliterating or destroying the will. Canceling is a revocatory act on the will without regard to whether the cancellation touched any of the words on the will.
Suppose that, in the previous question, Emily had handed the will to a friend and asked the friend to tear up the will. The friend took the will into another room and tore the will into small pieces. When Emily dies, should the will be admitted to probate?
Emily is permitted to revoke the will by directing another person to perform a revocatory act to the will in Emily’s “conscious presence.” U.P.C. section 2-507(a)(2). Conscious presence in this context means within the range of the senses of the testator. It is likely that taking the will into another room to tear it up is within the conscious presence of Emily and the will is revoked.
In March of 1999, Lourdes validly executes a will which states, “I leave all of my property to my son, Andrew.” Six months later, Lourdes validly executes another will that states, “I leave all of my property to my friend, Jose.” When Lourdes dies both wills are found. How should Lourdes’ estate be distributed?
Under U.P.C. section 2-507(c) a testator is presumed to have intended to revoke a previous will, if a subsequent will disposes of her entire estate. Because Lourdes’ second will disposes of all of her estate, her first will is revoked by inconsistency, and her estate will pass according to the second will.
In May 2000, Diana validly executes a will that states, “I leave my coin collection to Bill. I leave everything else to Sylvia.” In May 2001, Diana validly executes a will that simply states, “I leave my coin collection to Dale.” When Diana dies, how should her estate be distributed?
A testator can make a partial revocation of a previous gift with a subsequent instrument. The partial revocation occurs based upon inconsistency. The second will did not dispose of all of Diana’s estate; however, it did make an alternative disposition of the coin collection. The second disposition of the coin collection is inconsistent with the first disposition. So the second disposition operates as a revocation of the gift to Bill. U.P.C. section 2-507(d).
