will formalities -- notorized wills and holographic wills Flashcards
how do we know whether we should be looking at a will?
Depends on their adherence to formalities
Also depends on whether you’re following strict compliance or substantial compliance
what is a notarized will?
its an option given via the UPC
under the upc in order to be in strict compliance with the attestation requirement you can either have it signed b two people or have it notarized
what is a holographic will? what does it not require that traditomal wills do?
A will written by the testator’s hand and is signed by the testator; it NEED NOT be attested by witnesses
what is the key takeaway from Kimmel
On the morning of his death, the decedent sent a letter to his sons, George and Irvin, discussing various matters and expressing his intent to leave his property to his sons if anything happened to him.
Is the paper testamentary in character? Is the signature to it a sufficient compliance with the Wills Act?
yes anf yes
It is clear that the words ‘if anything happens’ condition the gift, they strongly support the idea of a testamentary intent ; they exactly state what is expressed in or must be implied from every will
because it was written in his handwriting and signed by him, valid holographic will so no need for witness.
what question are the formalties designed to answer
designed to answer the question – SHOULD we be looking at this as decadent’s substantive estate plan
how do we analyize the first question of “is it a will?” what factors do we look for other than the obvious labling the document of a will
not worried about form, But we are worried about the words used ie “if anything happens” = gift effective upon death
Also names who gets what = identifying beneficiaries
Kept it locked up – bolsters the argument
can also look to circumstantial evidence (ie was it written close to death)
when asking about the second question (should we be looking at it) what do we look for/analyze
we are worried about the form (ie its compliance with will formalities)
when do we turn to the question of of testamentary intent (ie what does it say)
after we answer
1. is it a will?
2. should we be looking at it?
are pre-printed will forms valid holographic wills? what about a regular attested will?
(Suppose a person obtain a preprinted will form, completes the form BY HAND, and signs it, but does not have it attested by two witnesses)
Under strict compliance via the wills act, the form is not entitled to probate as a formal will
It might be entitled to probate as HOLOGRAPHIC WILL if enough of its text was HANDWRITTEN by the decedent
what is the key takeaway from gonzalez
decedent used a pre printed will form
On the first copy of the form, he had handwritten his testamentary wishes
The sister in law said that he had already filled out the form by the time she saw it, but that she DID see him SIGN the document
This document was signed by the decedent, but not by any witnesses
ISSUE
What parts of the will need to be handwritten for it to stand as a holographic will?
All that matters is whether the MATERIAL PROVISIONS are in his handwriting
Printed portions of a will form can be incorporated into a holographic will where the trial court finds a testamentary intent, considering all of the evidence in the case
what is the key takeawau from ferree on the holographic will issue
Court argues that with a holographic will we cant look at the preprinted stuff
If we ignore all the preprinted will and just look at handwriting, it means nothing, and cant answer question one
what is the key takeawa from Baker
The testator did not sign her name at the end of her purported holographic will, but she did write her name and underlined it AT THE TOP of the first page
Court Argument that most people sign at the bottom to rebut signature formality
what are the three generations in terms of how much of a doc needs to be in the testaor’s handwriting to be a valid holographic will
First gen – must be entirly in the testator’s handwriting and must be signed by the testator
Second gen (UPC)– signature and material provisions in their handwriting
Third gen (UPC amendment)– only the material provisions must be handwritten, and extrinsic evidence is allowed to establish testamentary intent
what is the key takeaway from kuralt (holographic will and extrinsic evidence)
From 1970 –94, the decedent was the host of CBS News Sunday Morning
Six years into his marriage, he met a woman named Pat
Two weeks before he died, he wrote pat a letter assuring her that he would see to it that she would inherit his property in Montana
In may of 1989, he executed a holographic will which said
In the event of my death, i bequeath to Pat all my interest in land, buildings, furnishings and personal belongings on Burma road, Montana.
He mailed a copy of the holographic will to pat, but then he also executed a FORMAL WILL in may of 1994
Did the district court err when it found that the 1997 letter expressed a PRESENT TESTAMENTARY INTENT to transfer property in Madison County?
no;The letter met the threshold requirements for a valid holographic will
also tells us that courts can use extrinsic evidnecne to show testamentary intent
draw flow chart for the first two questions (is it a will/should we be looking at it)
it should include attested and holographic wlls, check notebook for answer
