will formalites -- intro, rule of strict compliance, attestation, signature, proving a will, interested witnesses Flashcards
what is a will
an expression of intent; an expression of intent of who gets what at death in a particular form
with some caveats, what are the basic will formalities for attested wills
writing, signature, and witness (aka attestation)
whats the difference between a signature and a subscription
only difference is where it shows up on the document
what are the formalities of an attested will under the wills act
1.writing, 2.signature, 3. two witnesses and their signature that are present when the will was signed or acknowleged
what are the formalities of an attested will under the UPC 1990
1.writing, 2.signature, 3.two witnesses and their signature
what are the formalities of an attested will under the UPC 2008
1.writing, 2. signature, 3. signature by two witnesses OR notarization
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
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
what is the rule of strict compliance
under traditional law, a will must be executed in strict compliance with all the formal requirements of the applicable wills act
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
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
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?
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
why do we have this witness/attestation requirement?
To make sure its the testator signing , so their signature is ATTESTING that they saw the testator signed
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?
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.
see attestation slide 10 from class 6 – whats the gist
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
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
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
what constitutes a signature
Anything that testator intends to serve as signature via the restatement
Signature with assistance or by someone else is fine as well
what is the purpose of the signature requirement
The purpose is to provide evidence of finality, and to provide evidence of genuineness
what kind of issues surrounding the signature requiremnt come up?
Problems arise when the testator’s signature is INCOMPLETE or takes a DIFFERENT FORM
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?
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!
how does the restement define a signautre
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
under the restatement, can a signature be valid if its made with the help of another person
yes; but it must be done in the presence and at the direction of the testator
what is a self proving affidavit
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
what is an attestation clause? under the upc, what does the exsistnece of this clause do
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
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)
Because the DECEDENT SIGNED IT! Its for the witness to sign
what do signatures on self proving affidavits mean? what is this an example of
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
