will formalites -- Ad hoc relief from strict compliance; substantial compliance doctrine, the harmless error rule Flashcards
what is the key takeaway from Pavlinko (the accidental signature swap)
Vasil and Hellen Pavlinko, non-native English speakers, hired an attorney to draft their wills, but mistakenly signed each other’s wills
Should/can the court accept this will even though the signature part was not met, in the name of equity?
what did the dissent want to do
NO! A case where everyone knows what happened and that it was a pure mistake, but the court’s strict adherence to the formalites made the will not valid
However the dissent wanted to figure it out, despite the fact that it might be a little less efficient
Ie we know what they wanted so let’s take some time to figure it out!
why do courts like to follow strict compliance?
because it promotes efficentcy! we dont have to spend time figurng out what intent is; if they didnt strictly comply, then its thrown out
what is the key takeaawy from snide? why did it have a different outcome than pavlinko?
The decedent and his wife, intending to execute mutual wills at a common execution ceremony, each executed by mistake the will intended for the other
Except for the obvious differences in the names of the donors and beneficiaries on the wills, they were in all other respects identical
Can the instrument be admitted into probate
court says yes; there was no threath of fraud and the only discrepency was the swapped names
court sees what the intention was and is willing to bend more than the pavlinko case
what is the doctrine of substantial compliance? what does it focus on instead of strict compliance
- does the non complying document express the decedent’s testamentary intent and
- Does its form sufficiently approximate Wills Act formality to enable the court to conclude that it serves the purpose of the Wills Act?
what does the second question asked by substamtial compliance mean? ( Does its form sufficiently approximate Wills Act formality to enable the court to conclude that it serves the purpose of the Wills Act?)
The wills act has four purposes – evidence of intent, protective function, cautionary function, efficiency function
So he’s asking will it still serve the other three functions
do states really follow substantial compliance
some do but most dont, its more of a different way of framing the question around compliance with the will formalities
what is the key takeaway from ranney (substantial compliance)
Testator’s lawyer had meant to include at the end of the will a one-step self proving affidavit, but he mistakenly used the language of a two-step affidavit
When the testator and the witnesses signed the affidavit before a notary, they made a false declaration
They had not first executed the will in strict compliance with the Will’s act, as the affidavit declared
If an error in execution results in non-compliance with the formalities required by statute, can the will be probated if the proponent shows that the will substantially complies with the statutory requirements?
The court said that the absence of strict compliance does not end the analysis –adopts substantial compliance
The court held that a will may be probated with CLEAR AND CONVINCING EVIDENCE that it SUBSTANTIALLY complies with the wills act
what is the key takeaway from Ferre
The testator died of suicide
A last will and testament dated 1999 and filled in by hand on a preprinted will form, was found near his body
The form was signed by him and notarized, but it was not attested by two witnesses
rejected the substantial compliance doctrine; this manner of execution did not SUBSTANTIALLY comply with the wills act
Even if the notary were treated as a witness, there would still be only one rather than the required two
what is the upc harmless error rule? what does it essemtiallu allow?
document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing established 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 the decedent’s formerly revoked will or of a formerly revoked portion of the will
This new section allows the probate court to excuse a harmless error in complying with the formal requirements for executing or revoking a will
can harmless error be applied in the absence of a doucment?
NO!
what is the key takeaway from hall (new joint will not properly witnessed; daughter wants to probate original will that was ripped up)
Jim first executed a will in 1984 (the og will)
13 years Jim and betty’s attorney transmitted to them a draft of a joint will
Jim and Bettey proceeded to sign the joint will and the lawyer notarized it without anyone else present (ie witness formality lacking)
Jim told betty to tear up the original will and after Jim died, betty applied to informally probate the joint will, her stepdaughter objected and requested formal probate of the original will
If a will has not been properly witnessed, may it be considered valid if there is clear and convincing evidence that the testator intended it to be his or her will?
If a will has not been properly witnessed, it may be considered valid if there is clear and convincing evidence that the testator intended it to be his or her will.
tearing up the old will tells us what about the new will
That it was meant to take its place. He did not intend to die intestate so there’s evidnece that there was intent for that new will to be valid
what kind of evidnece does the harmless error rule allow to coem in
extrinsic evidence
where is the first place you start in a wills analysis, regardless of harmless error or strict compliance
the formalities! analyze whether or not they were adhered to
what is the key takeaway from macool?
Louise executed a will naming her husband as the sole beneficiary of her entire estate, and also named her sever stepchildren, step-granddaughter, and step great grandson as contingent beneficiaries
Her husband died in 2008, she went to a lawyer with the intent of changing her will
According to the lawyer, after discussing the matter with her and using her handwritten notes as a guide, he ‘dictated the entire will while she was there’
The lawyer’s secretary typed a DRAFT VERSION of the will with the word ‘rough’ handwritten on the top left corner of the document
She died about one hour after her meeting with the lawyer and she never had opportunity to see the draft will
Can the draft be submitted into probate as a last will and testament?
(not reached in this case) whether a writing offered under the statute must be signed by the testator (see blue text in reasoning for answer to this question)
Under the statute of the state, the proponent of the writing intended to constitute such a will must prove, by CLEAR AND CONVICING evidence that: (1) the decedent actually reviewed the document in question and (2) thereafter gave his or her final assent to it
how does the restatement define a writing
does not require that the will be written on sheets of paper, but it does require a medium that allows the markings to be detected.”
