will formalites -- intro, rule of strict compliance, attestation, signature, proving a will, interested witnesses

Question 1

what is a will

Answer 1

an expression of intent; an expression of intent of who gets what at death in a particular form

Question 2

with some caveats, what are the basic will formalities for attested wills

Answer 2

writing, signature, and witness (aka attestation)

Question 3

whats the difference between a signature and a subscription

Answer 3

only difference is where it shows up on the document

Question 4

what are the formalities of an attested will under the wills act

Answer 4

1.writing, 2.signature, 3. two witnesses and their signature that are present when the will was signed or acknowleged

Question 5

what are the formalities of an attested will under the UPC 1990

Answer 5

1.writing, 2.signature, 3.two witnesses and their signature

Question 6

what are the formalities of an attested will under the UPC 2008

Answer 6

1.writing, 2. signature, 3. signature by two witnesses OR notarization

Question 7

what is the key takeaway from in re Groffman?

The litigation focused on the question of whether the witnesses were present together at the same time when the testator acknowledged his signature on the will, as required by the relevant statute

The testator acknowledged his signature to them SEPARATELY, one after the other, in the dining room

Spouse argument
The will is not valid, lacking via witness requirement because they were not present together “in the presence of two or more witnesses present at the same time

Answer 7

The court refused to admit the will to probate — sticking to strict compliance, despite evidence that the testator intended to execute the will

this was a highly technical violation via the strict wording of this states statute

Question 8

what is the rule of strict compliance

Answer 8

under traditional law, a will must be executed in strict compliance with all the formal requirements of the applicable wills act

Question 9

what does presence mean in will execution (two approaches) (ie the requirement that the witnesses sign in the PRESENCE of the testator? what does the UPC require out of the two

Answer 9

Line of sight – can you see each other; the testator does not actually have to see the witness sign but must be able to see them were the testator to look

Conscious presence – any senses that enable them to know what is going on; A witness is in the presence of the testator if the testator, through sight, hearing, or general consciousness of events, COMPREHENDS that the witness is in the act of signing

upc goes with conscious presence

Question 10

what is the key takeaway from in re Demaris

Issue
Is a requirement that attesting witnesses sign the will in the testator’s presence satisfied if the testator knows based on any of his senses that the witnesses are nearby and what the witnesses are doing?

Answer 10

A requirement that attesting witnesses sign the will in the testator’s presence is satisfied if the testator knows based on any of his senses that the witnesses are nearby and what the witnesses are doing.

ie the conscious presence approach

Question 11

why do we have this witness/attestation requirement?

Answer 11

To make sure its the testator signing , so their signature is ATTESTING that they saw the testator signed

Question 12

what is the key takeaway from stevens v. casdorph

Homer Haskell Miller executed his will at a bank with two tellers signing as witnesses, but they did not sign in his presence or in each other’s presence. Miller’s nieces challenged the will’s validity

Issue
Is a will enforceable that was witnessed outside the presence of the testator, contrary to statutory requirements, and the witnesses did not acknowledge their signatures in the presence of each other and the testator?

Answer 12

A will can be enforced despite a testator’s non-compliance with the statute’s technical requirements for valid execution of a will only if the witnesses who failed to sign in the presence of the testator acknowledge their signatures in the presence of each other and the testator.

Question 13

see attestation slide 10 from class 6 – whats the gist

Answer 13

that some jurisdictions have a stricter or looser attestation requirements in terms of the presence requirements, the order of signing the timing of attestation, and publication

Question 14

what is the key takeway from matter of ryan?

William Ryan, suffering from a serious illness, executed a will remotely due to COVID-19 restrictions. His attorney, Peter Gorton, and two staff members witnessed the signing via live video.

Issue – does video conference constitute PRESENCE

Answer 14

Remote execution and attestation of a will might satisfy statutory presence requirements during a pandemic.

while he was not physically present in the same room as the witnesses, they were able to SEE HIM execute the will, in REAL TIME, using the cell phone camera and the computer

Question 15

what constitutes a signature

Answer 15

Anything that testator intends to serve as signature via the restatement
Signature with assistance or by someone else is fine as well

Question 16

what is the purpose of the signature requirement

Answer 16

The purpose is to provide evidence of finality, and to provide evidence of genuineness

Question 17

what kind of issues surrounding the signature requiremnt come up?

Answer 17

Problems arise when the testator’s signature is INCOMPLETE or takes a DIFFERENT FORM

Question 18

what is the key takeaway from Bitetzakis (signature)

Gregory Bitetzakis attempted to execute his will but stopped signing midway due to his wife’s belief that a notary was required.

Only the decedent’s first name appeared on the signature line of the will and that he normally signed his whole name when signing documents

his daughter Alice appealed, arguing non-compliance with statutory formalities.

ISSUE
Did the signing of the first name constitute a proper signing?

Answer 18

The probate court erred in admitting the unsigned will to probate.

in a strict compliance jurisdiction, it doesn’t matter what the person’s intent is, strict compliance does not ask about intent; it substitutes formal compliance for intent!

Question 19

how does the restement define a signautre

Answer 19

testator writing out his or her name in full; signature by a mark or cross is ok as well

the main requriment is that it must be done with the intent of adopting the document as their will

Question 20

under the restatement, can a signature be valid if its made with the help of another person

Answer 20

yes; but it must be done in the presence and at the direction of the testator

Question 21

what is a self proving affidavit

Answer 21

where the witness make an affidavit swearig as to the will’s due execution

Looks into the past
“We DID serve as witness”
Substitute for witness coming into court

Question 22

what is an attestation clause? under the upc, what does the exsistnece of this clause do

Answer 22

usually the last thing in the will; recites that a will was duly executed in accordance with the particulars of the wlls act

it rasises a rebuttable presumption that the events recited in the clause have occured

Question 23

why does the self proving affidavit not make sense as it was used in the bitetzakis case? (the one where the testaor only signed half his name)

Answer 23

Because the DECEDENT SIGNED IT! Its for the witness to sign

Question 24

what do signatures on self proving affidavits mean? what is this an example of

Answer 24

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 THE WILL’S DUE EXECUTION.”

An example of legislative steps to RELAX the formalities without sacrificing efficiencies

Question 25

what is the key take away from taylor v holt

A week before the testator died, he composed a will using word processing
software on his computer

In the presence of two witnesses, he typed a signature in a cursive font and then printed the document

Answer 25

Signature must mean pen to paper in most cases
But for this case, TN statute allowed the typed out name

Question 26

what issue does interested witnesses deal with?

Answer 26

Can you witness a will if you benefit through it?
Fear of fraudulent schemes

Question 27

what is an interested witess

Answer 27

someone who is named to recive a gift under a will and also acts as a witness to the will

Question 28

how do states deal with an interested witness? what is the common law rule that no state follows any more?

Answer 28

Common law - cant witness if you are interested;The entire will is invalid

States either follow UPC(interest of signer does not matter) or they have a purging statute (the will stands except the part that benefits the witness

Question 29

what is the modified purging statute (followed by a minority of states)

Answer 29

purges the gift that an intersted witness would recived under a wil that is more than what they would have gotten in intestancy.