Morsek's Rules

Question 1

Fundamental formalities for a will to be valid include:

Answer 1

1. The will must be in writing;
2. The will must be signed by the testator;
3. The testator must sign or acknowledge the will or his signature in the joint presence of at least two competent witnesses;
4. The two witnesses must sign the will during the testator’s lifetime; and
5. The witnesses must understand that the instrument being witnessed is the testator’s will.

Question 2

Fundamental components of a will:

Answer 2

1. Writing;
2. Signed; and
3. Witnessed

Question 3

Who can sign?

Answer 3

The will must be signed:
(1) by the testator;
(2) in the testator’s name by some other person in the testator’s presence and by the testator’s direction; or
(3) by a conservator pursuant to court order.

Question 4

What is a valid signature?

Answer 4

Any mark affixed by the testator with the intent that it operate as his signature satisfies the requirement. The signature need not be the proper and full name of the testator. It can be his nickname or initials if this is intended to serve as a complete signature.

Placement of the signature: Need not be signed at the end (in most jurisdictions including California).

Question 5

For a will to be valid and admissible to probate, . . .

Answer 5

. . . the testator must meet the fundamental requirements of due execution imposed by statute. If the statutory requirements are not met, the will is void and cannot be admitted to probate.

Question 6

Who are competent witnesses?

Answer 6

To effectively attest a will, a witness must be competent at the time the will is executed.

The fact that a competent witness subsequently becomes incompetent after the execution of the will does not disqualify him as a witness; nor, according to the usual rule, does a witness who is incompetent at the time the will is executed become competent because of subsequent events.

Question 7

Define

Competent Witness

Answer 7

One with sufficient mental capacity to perceive, remember, and describe what they witnessed. Further, a competent witness must be able to understand and appreciate the nature and obligation of an oath.

For example, a child who is unable to understand the meaning of an oath because of their young age is not a competent witness.

Question 8

How do you demonstrate that the witnesses understood that the instrument being witnessed is the testator’s will?

Answer 8

The testator does not have to declare that the document is his will. However, something about the execution process must convey to the witnesses the information necessary for them to realize and understand that the document being signed is the testator’s will.

Question 9

Is an attestation clause required?

Answer 9

No. However, such a clause is very useful in proving due execution of a will. A properly executed attestation clause makes out a prima facie case that the will was duly executed, and thus, the will may be admitted to probate even though the witnesses predecease the testator or cannot recall the events of execution. The opponent of the will must rebut the presumption that the will was duly executed.

Question 10

Two Tests for Presence

Answer 10

1. Line of sight test
2. Conscious Presence test (Majority view)

Question 11

Define

Line of sight test

Answer 11

Provides that the parties must be in each other’s line of sight when they sign; they do not actually have to see the other party sign, but must be able to see should they choose to look. California follows the line of sight test.

Question 12

Conscious Presence test

Answer 12

Majority View. Provides that a party is within another party’s presence if the former party through sight, hearing, general consciousness of events comprehends that the latter party is in the act of signing.

Note: This generally means “physical presence” (i.e., not telephonic presence)

Question 13

Arguments in favor of strictly following will formalities:

Answer 13

• A testator who complies with the statutory formalities can be assured that the document will be treated as a will; a document that does not comply, will not be treated as a will.
• The formalities impress on the testator the importance of what he or she is doing, as they are demanding. This may help promote careful thought and planning.

Question 14

Curative Doctrines

Answer 14

• Reformation
• Substantial Compliance
• The Harmless Error Rule

Strict compliance with will execution statutes can frustrate the subjective intent of the will maker. In other words, “formalism may frustrate intent.” Therefore, these curative doctrines have been applied to allow wills to be probated in the absence of strict compliance with the statutes.

Question 15

Reformation

Answer 15

The paramount concern in construing a will is to determine the subjective intent of the testator.
* An ambiguous will may be reformed by the court to conform to the intent of the testator. The modern trend is to allow reformation of a will and admit extrinsic evidence to resolve any type of ambiguity.
* An unambiguous will may be reformed to conform to the testator’s intent if clear and convincing evidence establishes (1) that the will contains a mistake in the testator’s expression of intent at the time the will was drafted and (2) the testator’s actual specific intent at the time the will was drafted (extrinsic evidence is admissible to determine both the mistake and the testator’s actual intent).
* Remember: Reformation can be applied only where there is no danger of fraud or imposition.

Traditional Rule: Courts do not correct mistakes.

Question 16

Patent Ambiguity

Answer 16

A patent ambiguity occurs when a provision in a will is unclear on its face; it does not convey a sensible meaning to the reader.
* Think of it as an obvious amgibuity.
* For example, the testator’s will contains the following provision: I gift my Scrittle-Scrattle to my son and gift the rest and residue to my daughter.”
* Under common law, extrinsic evidence would not be permitted to