FOURTH CONCEPT: FORMALITIES OF EXECUTION FOR ATTESTED OR FORMAL WILLS (WITNESSED WILLS) Flashcards
What are the 5 traditional formalities (elements) for an attested will?
- the will must be in writing, (oral wills are not recognized in CA)
- The will must be signed
- The signing must be done in the presence of two witnesses, both present at the same time.
- The witnesses must sign the will during the testator’s lifetime.
- The witnesses understand that the instrument they sign is T’s will
Who must the will be signed by?
The will must be signed by one of the following
three people:
1. Testator
2. A third person, in testator’s presence and at testator’s direction. This arises if testator is incapacitated.
3. By a conservator pursuant to a court order
What if testator had previously signed alone or in the presence of just one of the witnesses? Does testator have to sign again in the presence of the two witnesses?
No. In such case, testator simply acknowledges his signature (“This is my signature”) or acknowledges the will (“This is my will”), in the presence of the two witnesses, both present at the same time.
If the will does not satisfy elements 3, 4, or 5, of the “traditional formalities” approach,
(3. The signing must be done in the presence of two witnesses, both present at the same time. 4. The witnesses must sign the will during the testator’s lifetime. 5. The witnesses understand that the instrument they sign is T’s will),
California’s “clear and convincing” standard (also known as the “harmless error rule”) may apply. What does the proponate of the will need to establich to have the harmless error rule apply?
In such case, the will can still be admitted into probate if the proponent of the will establishes by “clear and convincing evidence” that at the time the testator signed the will, he or she intended the will to constitute his or her will.
What elements of the 5 traditional formalities (elements) for an attested will can be cured by the California’s “clear and convincing” standard (also known as the “harmless error rule”)?
- The signing must be done in the presence of two witnesses, both present at the same time.
- The witnesses must sign the will during the testator’s lifetime.
- The witnesses understand that the instrument they sign is T’s will
T signs his will in the presence of Witness #1 only. The next day, T acknowledges his will or signature in the presence of Witness #2 only. Thereafter, T dies. On these facts, T did not execute his will in compliance with the “traditional formalities,” How can this be cured?
if the proponent of the will can establish by clear and convincing evidence that T intended the will to be his will when T signed it, the will is admitted into probate.
T signs his will in the presence of the 2 witnesses, but the witnesses forget to sign the will. T thereafter dies. The witnesses sign after T’s death.
Can the will be admitted to probate?
this breaks element 4. of the 5 traditional formalities (elements) for an attested will (The witnesses must sign the will during the testator’s lifetime.)
However, if the proponent of the will can establish by clear and convincing evidence that T intended the will to be his will when T signed it, the will is admitted into probate.
T, without declaring the document to be his will, signs his will in the presence of the 2 witnesses, but only Witness #1 understands that the document
is T’s will; Witness #2 signs the document but does not know what the document is. T thereafter dies. Can the will be admitted to probate?
this breaks element 4. of the 5 traditional formalities (elements) for an attested will (The witnesses understand that the instrument they sign is T’s will). if the proponent can establish by clear and convincing evidence that that T intended the will to be his will when T signed it, the will is admitted into probate.
What is the approach for formalities of execution on the California Bar Exam:
[1] First, always analyze the problem under the “traditional formalities”
[2] Second, if there is a problem with compliance under the “traditional formalities” approach for elements (elements 3, 4, or 5), then use the “clear and convincing” standard for those elements.
[3] Note that the clear and convincing standard cannot be used for (elements 1 or 2).
must the Testator sign the will before the witnesses sign?
[a] Some courts in other jurisdictions have construed similar state statutes as implicitly imposing a requirement that the testator sign first.
[b] More recent cases in other jurisdictions, however, have held that even if the witnesses sign first, the will is still valid so long as the testator signs before either witness leaves the room.
On the bar exam, if you get a hypo where the witnesses sign before the testator signs, tell the bar examiners what?
“If there is no issue of fraud or mistake, the will should be deemed valid under California’s ‘substantial compliance’ doctrine
Also tell the bar examiners that if the proponent establishes by clear and convincing evidence that T intended the will to be his or her will, the document is the will and is admitted into probate.
Testator must sign or acknowledge in the “presence” of two witnesses. What two thing mean presence?
Sight presence: The witnesses see testator sign; or Conscious presence: Testator signs or acknowledges within the witnesses hearing and the witnesses know what is being done. (but not the clear and convincing standard)
Define interested witnesses
a witness who is a beneficiary under the will
What is the consequence of a interested witness?
the will is NOT invalid But unless there are two other disinterested witnesses, a presumption arises that the witness-beneficiary secured the gift by wrongdoing
What happens if the interested If witness-beneficiary cannot rebut the presumption of
wrongdoing?
he or she takes the amount as does not exceed what would be given by intestacy.
