Chapter 4 - Wills: Formalities

Question 1

What are the UPC requirements of a will?

Answer 1

UPC § 2-502

A will must be in writing, signed by the testator (or someone directed by the testator to sign for them) and either (A) signed by at least 2 people who witnessed the signing w/in a reasonable time or (B) acknowledged by the testator before a notary public or other person authorized by law to take acknowledgments.

Question 2

What does attest mean?

Answer 2

To authenticate by signing as a witness.

Question 3

What does “acknowledge” mean?

Answer 3

To declare before attesting witnesses that the testator has already executed the will.

Question 4

What does “subscribe” mean?

Answer 4

To sign at the end of the will.

Question 5

What does “publish” mean?

Answer 5

To declare before attesting witnesses that this is the intent of the testator in the will.

Question 6

What is the doctrine of strict compliance?

Answer 6

Any non-compliance—even if a harmless error based on faulty legal advice—can be grounds for rejecting a will from probate.

Question 7

If attesting witnesses are not present for the signing of a will, how would a typical court rule?

Answer 7

Most courts would invalidate the will / deny admission to probate for lack of proper witness attestation. See In re Groffman (the will did not satisfy the simultaneous presence requirement bc the attesting witnesses were not present for the signing of the will).

Question 8

If the testator signs the will and the will was notarized, but it was not signed by two attesting witnesses, how would a court rule?

Answer 8

Most courts would invalidate the will / deny admission to probate for lack of proper witness attestation.

In re Estate of Sarah Ellen Henneghan (D.C. Ct. App. 2012) (Affidavits from non-attesting witnesses, who cannot verify that they witnessed two attesting witnesses sign the will in the presence of the testator fail to satisfy the statutory requirements).

Question 9

A witness if generally competent if…

Answer 9

A witness is generally competent if they can OBSERVE, REMEMBER, and RELATE THE FACTS occurring at the will execution ceremony.

NOTE: If the witness is also a beneficiary…

UPC § 2-505(b): The signing of a wil by an interested witness does NOT invalidate the will or any provision of it.

Question 10

If the witness is also a BENEFICIARY…

Answer 10

Most states: interest of the interested witness is purged.

UPC § 2-505(b): “The signing of a will by an interested witness does not invalidate the will or any provision of it.”

**Use of interested attesting witnesses should be avoided.

Question 11

What is the function of the attestation clause? The purpose?

Answer 11

Attestation clause recites the circumstances surrounding the will’s execution ceremony from the witnesses’ perspectives.

**It also establishes a rebuttable presumption of a will’s validity!

Their purpose is to memorialize the witnesses’ observation of an authentic and voluntary will execution.

**They are customary but NOT required by most state Wills Acts (besides Louisiana)

Question 12

What is the function of a SELF-PROVING AFFIDAVIT?

Answer 12

SPAs are similar to and serve all the same purposes of an attestation clause, but they are SWORN and NOTARIZED. Thus, they provide admissible evidence of due execution w/o further testimony of attesting witnesses.

An erroneous use of an incorrect statutory form affidavit should NOT preclude the document from satisfying the Wills Act signature requirement.

UPC § 2504(c): A signature affixed to a self-proving affidavit attached to a will is considered a signature affixed to the will, if necessary to prove the will’s due execution.

Question 13

Does RECANTATION by attesting witnesses after the testator’s death preclude admission of the will to probate?

Does the Wills Act require witnesses to KNOW they are signing a will?

Answer 13

Yes — recantation INVALIDATES the will.

Yes — the Wills Act requires attesting witnesses to know they are signing a will. W/o that knowledge, they cannot attest.

**Estate of Griffith v. Griffith (Miss. 2010) (denying a will to probate for these two reasons.)

Question 14

What is the holographic will exception to the attesting witnesses requirement?

Answer 14

A holographic will is written and signed in the testator’s own handwriting. Under the exception, the testator’s handwriting sample is sufficient evidence for authenticity.

UPC § 2-502(b): If the signature and MATERIAL provisions are in the handwriting of the testator, the will is VALID without attesting witnesses. If the material provisions are not in the testator’s handwriting, it’s not a valid will.

FLORIDA: Does NOT recognize holographic wills, even if the will was valid under the laws of the state or county of execution.

Question 15

What are the FOUR FUNCTIONS of the Wills Act formal requirements for the creation, revocation, and revival of a will?

Answer 15

1. Ritual (or cautionary) function — ceremony of the will
2. Evidentiary function — intent of the testator (Prof. Weisbord’s fav)
3. Protective function — avoid fraud/duress
4. Channeling function — follow the formalities of a standard will

Question 16

What is the HARMLESS ERROR rule?

Answer 16

UPC §2-503

Although a document or writing added upon a document was not executed in compliance with §2-502, 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 his [or her] formerly revoked will or of a formerly revoked portion of the will.

**Most states have not enacted the harmless error rule (NJ follows; NY follows strict compliance)

Question 17

What is Prof. John Langbein’s proposed test for SUBSTANTIAL COMPLIANCE?

Answer 17

Finding a formal defect in a will should not lead to automatic invalidity, but to a further inquiry: does the noncomplying document express the decedent’s testamentary intent, and does its form sufficiently approximate the Wills Act formality to enable to court to conclude that it serves the PURPOSES of the Wills Act?

**Refer to the four functions

**In NJ, courts have come to require a form of strict compliance notwithstanding the state supreme court’s explicit adoption of Langbein’s broad conception of substantial compliance.

Question 18

What are the requirements for ELECTRONIC wills under the Uniform Electronic Wills Act?

Answer 18

The Uniform E-Wills Act authorizes electronic wills that are written, signed, and attested digitally so long as the instrument exists in “a record that is readable as text at the time of the signing.”

It must also be signed by the testator and in the presence of at least 2 witnesses who are residents of a state and physically located in a state at the time of signing and within a reasonable time after witnesssing the testator signing the will or acknowledgment by the testator before and in the physical or electronic presence of a notary public.

Question 19

How are wills revoked under UPC §2-507?

Answer 19

A will or any part of it is revoked:

(1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency;

(2) by performing a revocatory act on the will, if the testator performed the act w/ 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 direction….

(C) the testator is presumed to have indented a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of a 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…

Question 20

What are codicils?

Answer 20

A subsequent will that SUPPLEMENTS or AMENDS, rather than replaces, a previously executed will.

Codicil supersedes all provisions inconsistent with/ prior will

Formalities required:
- Attested codicil: (1) in writing; (2) signed by testator; (3) signed by attesting witnesses.
- Holographic codicil: handwritten and signed by testator.

Republication by codicil: A prior will is treated as re-executed as of the date of its most recent codicil if (and only if) such treatment would be consistent with the testator’s intent.

• FLORIDA: When a defectively executed will is republished by codicil, the validly executed codicil ratifies the improperly executed will.
• NY: A codicil does not republish an unattested will, nor an instrument which has been mutilated and effectively revoked.

Question 21

Revocation by PHYSICAL ACT

Answer 21

A will may be revoked by the testator’s performance of a revocatory act (burning, tearing, cancelling, obliterating) on the ORIGINAL will so long as the testator performed the act with the intent to revoke the instrument.

EXAMPLE: If a testator burned their house down intentionally to get the insurance $ and the will and codicil was burned as a result, the will is NOT revoked because the testator only intended to burn their house down. Both instruments may be probated if their contents can be proved by extrinsic evidence, such as production of reliable copies.

Revocation by physical act does not require witnesses or witness attestation.

Well-counseled testators usually do not revoke wills by physical act. The superior method to revoke a will is to write a new one.

NOTE: Tearing up a codicil with intent to revoke would revoke the codicil but NOT the original will. Tearing up the will with intent to revoke would revoke the will and all codicils.

Question 22

Can a testator revoke a will by performing a revocatory act on a COPY of the original will?

Answer 22

Testator cannot successfully revoke by performing a revocatory act on a copy of the will.

See Estate of George Gushwa (N.M. 2008) (not valid revocation when Gushwa wrote “revoke” on every page of his copy of the will, when Ted wouldn’t give the original will back).

NOTE: UPC § 2-503 would have applied to this case but it was not enacted in New Mexico. So the “Revocation of Missing Wills” document would have been a valid revocation in this case.

Question 23

What can one do to revoke a will when the original copy is not in the testator’s possession?

Answer 23

1. Execute a new will devising property to intended beneficiaries (w/ an express revocation clause and affirmative dispositions of property)
2. Execute a negative will disinheriting certain individuals

Question 24

Are LOST wills still valid?

Answer 24

A lost will that was duly executed and not revoked can be probated upon reliable proof of its contents.

NY: A lost will may be admitted to probate if (1) the will has not been revoked; (2) execution of the will is proved in the manner required for probate of an existing will; and (3) all of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy of the draft of the will proved to be true and complete.

Question 25

Partial revocation by physical act — UPC §2-507(a)(2)

Answer 25

UPC §2-507(a)(2) authorizes revocation by physical act for both complete and partial revocation.

• Partial revocation not by physical act occurs when, with intent to revoke, testator crosses out a will provision (but not the entire will) w/o signing the interlineation.
• Such a revocation usually creates an unattested devise to other beneficiaries, typically residuary beneficiaries.
• Some jurisdictions, including NY, do not permit partial revocation by physical act bc they cannot be authenticated by witness attestation or handwriting sample.

Question 26

Can a lawyer draft a will in which the lawyer receives a testamentary gift?

Answer 26

Usually no. However, MPC 1.8(c) allows this is if the client is a relative of the testator.

Question 27

What is the doctrine of choice of law?

Answer 27

GENERAL RULE: Judicial forum’s local choice of law governs threshold question of which state law governs the substantive question.

UPC § 2-506: A written will is valid if executed in compliance with § 2-502 or 2-503 of if its execution complies with the law at the time of the 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.

NOTE: Reference to § 2-503 expressly validates a will executed in compliance with the harmless error rule.

Question 28

What does SIGNATURE mean under the Uniform Electronic Wills Act?

Answer 28

“Sign” means, with present intent to authenticate or adopt a record:

(A) to execute or adopt a TANGIBLE SYMBOL; or

(B) to affix or logically associate with the record an electronic symbol or process.

NOTE: a typed signature is valid. It can be any tangible symbol!

Question 29

What does ELECTRONIC PRESENCE mean under the Uniform Electronic Wills Act?

Answer 29

“Electronic presence” means the relationship of two or more individuals in different locations communicating in real time to the same extent as if the individuals were physically present in the same location.

Question 30

If a non-lawyer prepares someone else’s will, is it valid?

Answer 30

NO — a non-lawyer who prepares wills is engaging in the unauthorized practice of law.

NOTE: Do it yourself wills do NOT benefit from the presumptions (of regularity that the will was properly executed) that apply to wills drafted by lawyers.

Question 31

What is the doctrine of revocation by OPERATION of LAW?

Answer 31

UPC §2-804 – Divorce or annulment of a marriage revokes, by operation of law, all probate & non-probate transfers to a former spouse (and relatives of a former spouse) unless otherwise provided by the governing instrument (e.g., will or trust), court order, or contract relatingto the division of the marital estate.

• Divorce revokes all dispositions in favor of a former spouse (and the former spouse’s relatives) by statutory default
• Dissolution of property upon divorce usually requires untangling of estate planning documents executed during marriage
• The revocation default automatically updates estate planning documents based on the presumption that a divorced person would not want to benefit a former spouse
• No revocation by operation of law by other changes of circumstances besides marriage or birth of children

Question 32

What happens to parties’ property interests after they finalize a divorce / annulment of marriage?

Answer 32

Under UPC § 2-804, the interest is severed of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship (or as community property with the right of survivorship), transforming the interests of the former spouses into equal tenancies in common.

Question 33

What is the doctrine of DEPENDENT RELATIVE REVOCATION?

Answer 33

DRR is a common law remedy for MISTAKEN revocation

• Revocation based on mistake of law or fact (mistaken belief someone was dead)
• Attempt to implement new testamentary plan that fails as a matter of law (testator revokes will by physical act in anticipation of executing new will; new will was not properly executed)
• Proponent must demonstrate that setting aside revocation would better implement decedent’s intent than revocation
• DRR does not give effect to decedent’s actual subsequent intent, but rather, sets aside mistaken revocation
• Doctrine useful in jurisdictions w/o the harmless error rule
• The presumption that the revocation of the will is ineffective is rebutted if allowing the revocation to remain in effect would be more consistent with the testator’s probable intention.

Question 34

What is the doctrine of REVIVAL of REVOKED wills?

Answer 34

UPC § 2-509: When a testator executes multiple wills, the MOST RECENT instrument prevails.

• Absent express revocation, all prior inconsistent wills and will provisions will be revoked by inconsistency.

DOCTRINE OF REVIVAL: determines whether revocation of a subsequent will presumptively revives a prior revoked will.

Question 35

Will #2 wholly revokes Will #1. Testator revoked Will #2 by physical act. Is Will #1 revived?

Answer 35

Will #1 presumptively remains revoked absent evidence the testator intended revival.

Question 36

Will #2 PARTLY revokes Will #1. Testator revoked Will #2 by physical act. Is Will #1 revived?

Answer 36

Revoked parts of Will #1 presumptively revived absent evidence testator did not intend revival.

Question 37

Will #2 wholly or partially revokes Will #1. Testator revoked Will #2 by executing Will # 3. Is Will #1 revived?

Answer 37

Revoked portions of Will # 1 remain revoked UNLESS revived by the terms of Will #3.

Question 38

What is the doctrine of Contracts Concerning Testamentary Succession?

Answer 38

UPC § 2-514

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, it may be established only by:

(I) provisions of a will stating material provisions of the contract,

(II) an express reference in a will to a contract or extrinsic evidence proving the terms of the contract, or

(III) 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.