wills! Flashcards
wills act formalities
5 reqs
Must be (1) in writing: (2) signed; and (3) attested. Sometimes (4) subscription (signed at the end or foot by testator) and (5) publication (affirmative declaration before witnesses that instrument is a will)
subscription
signed at the end by the testator
publication
affirmative declaration before witnesses the instrument is last will
attestation clause
boilerplate language which presumes the validity of the will / formalities met
self proving affadavit
added to the last will, where witnesses swear an oath that this is last will
signature - when may mark meet req?
3 reqs
IF
* Intent to adopt mark as signature
* Intent to adopt document as will and
* Intent to adopt mark as identity
1. Not a stamp, but most anything else
can someone else sign for the testator?
(ii) One may sign for another if acting according to the intent of the testator
attestation general reqs
(i) At least two witnesses are required (three in some states)
(ii) Witnesses signatures
* In the presence of other witnesses
* In the presence of the testator – Testator sign in front of or acknowledge signature
1. UPC allows “reasonable time” after signed to be acknowledged
2. Notarization as an alternative under UPC
two presence tests
line of sight
conscious presence
line of sight test
- Test: would they be able to see the witness if they were to look?
- Must be in the same room – eyes*
conscious presence test
- UPC test: through sight, hearing, or general consciousness of events, can they comprehend the witness signing?
- Mental comprehension through any of senses
- Restatement wrinkle – presence must be “near enough” to testator to be able to sense each other’s presence
witness reqs
- To be competent a witness must be (1) sane and (2) disinterested
how to treat a interested witness
4 ways
- Common law rule: void entire will
- Purge rule: void the gift to the interested party
- Excess rule: void only gift greater than intestate share
- UPC: void only if there is suspicious circumstances – fraud / undue influence
the purposes of the wills act formalities
a) Evidentiary function: reliable evidence of testator’s intent
b) Channeling function: standardizes will. Looks like a will probably is
c) Cautionary/Ritual function: impresses significance on testator for sincerity
d) Protective function: protect from the imposition of coercion or fraud or mistaken substitute
3 types of compliance w/ formlities
strict
substantial
harmless error
strict compliance
majority rule
a) Must meet all formalities requirements exactly. If it does not it will be invalid
= 1) writing, (2) signature, (3) attestation (testator signs in the presence of two witnesses AND witnesses sign in presence of one another)
substantial compliance
C&C substantially complied with (50/50 may deem – a choice)
a) C&C substantially complied with (50/50 may deem – a choice)
a) Rule : a court may deem a defectively executed will as being in accord with statutory formalities if there is clear and convincing evidence that the purpose of formalities were served
(i) Court rules will is in compliance with formalities if C&C intent, substantially complied with, & it serves the purposes
harmless error rule
67/33 – court excuses)
a) UPC RULE codified
b) Rule: The court will excuse noncompliance if there is clear and convincing evidence that the document was intended to be testator’s will
(i) Basically, presumption that it was executed in compliance if C&C of intent to make that a will
notarized wills
allows a notary to stand in place of witnesses (UPC alternative)
ways to fix bad execution in strict compliance jurisdiction
(i) Probate will testator actually signed and change terms to eliminate wrong names in document
(ii) Offer both wills together at probate
(iii) Probate will signed wrongfully by spouse meant for testator
ways to get around wills act reqs
4
a) Substantial compliance may deem
b) Harmless error rule codified, court will excuse – presumption of valid will
c) Notarized wills
(i) Allow a notary to stand in place of witnesses
(ii) Means
* Person who is signing the will is who they say they are
* Notaries have authority from the state
* Serves will formality purposes
* UPC uses as alternative – minority rule
d) Holographs
holographic wills
(no harmless error rule here) (based on jurisdiction) *majority of states
1) Rule: in states that recognize holographic wills, a will written in the testator’s (1) handwriting and (2) signed by testator can be a valid will if intended document to be last will and testament
intent is key!!
analysis for holographic wills
did testator intend this document to be will?
is there a fruad or deception issue?
holographs: handwriting analysis
a) First Gen:it all must be handwritten
b) Second Gen:material “provisions” and signature handwritten
c) Third Gen:material “portions” handwritten and typeface can be used as extrinsic evidence to contextualize handwriting
(i) If it is all handwritten – clearly okay, if some typed – material provisions need to be handwritten
policy for hologrpahs
(i) For everyone
(ii) Allows ordinary people to have their intent carried out
(iii) Helps people who cannot hire a lawyer
(iv) In extreme circumstances
(v) Authentic
(vi) Most people are not dumb
(vii) Carries out wishes of ordinary people
b) Issues and concerns
(i) Trouble in determining intent
(ii) Deception / fraud
(iii) Testators lack basic knowledge / actual intent of estate planning
will components
4
integration
republication by codicil
incorporation by reference
acts of independent significance
Integration
Rule: all papers present and in existence at time of execution and intended to be in the will are integrated as part of the will
republication by codicil
Rule: A later codicil that reaffirms original will is treated as if it is reissued or republished on date of codicil
(i) Can cure defects of prior will/codicils
incorporation by reference
general defintion
Gives testamentary effect to documents that are not present at the execution ceremony and not having testamentary formalities.
If within will, it becomes a part of the will
incorporation by reference: common law rule
General rule: cannot change the writing after will – must be in existence at execution
incorporation by reference: UPC rules
b) UPC rule: will must (1) manifest intent and (2) describe writing sufficiently to permit identification - (3) already in existence!!!
(i) “constructive integration”
c) UPC tangible personal property rule: will may refer to outside writing to dispose of tangible personal property
(i) the writing must be signed by the testator and must describe the items and the devisees with “reasonable certainty” described
(ii)** may be altered **after will preparation
acts of independent significance
a) Facts or circumstances outside of the scope of one’s testamentary intent/will can change the testamentary scheme even if lack formalities
(i) Issue when the gift specifies events or things about or to determine beneficiaries
b) UPC rule: may dispose of property by reference to acts and events that have significance apart from their effect upon dispositions **made by will whether they occur before or after execution of will or before or after T’s death
(i) If will is affected by outside events or acts that are separate from intent to change testamentary scheme, it may stand. If fraud or post will change for that intent, strike gift because not a will
UPC contract rule
only contract about will if the will (1) states contract provisions, (2) references to K, or (3) writing evidences K
will construction issues
ambiguity and mistakes
ambiguities happen when
the words have more than one meaning
plain meaning rule
common law rule
plain meaning of the words of the will cannot be disturbed by evidence the testator intended another meaning
(i) No extrinsic evidence, no reformation
no reformation rule
court cannot reform mistaken or ambiguous terms to reflect what the testator meant or intended to say
common law rule
courts do not have the power to refrom wills. only the words can be analyzed
types of ambiguities
patent: evident on the face of the will
latent: manifests when applied to facts
patent ambiguity
evident on the face of the will
(i) Common law: extrinsic evidence not permitted. Confined to the four corners
* If can’t find meaning gift fails
modern rule: collapse the difference in patent and latent and EE may be introduced
latent ambiguity
manifests when applied to facts LATER LATENT
(i) Common law/modern: extrinsic evidence may be admitted determining ambiguity of intent
(ii) Examples
* When gift doesn’t fit anything
* Gift matches something T intended to use in T’s personal usage (nickname)
* Gift fits two things exactly
* Gift fits different things partially
mistake analysis UPC RULE
language has one meaning but it does not reflect the testator’s intent
a) UPC trend toward open reformation – Minority rule
(i) court may reform the terms of a governing instrument, even if unambiguous, to conform the terms to the transferor’s intention if it is proved by clear and convincing evidence what the testator’s intention was and that the terms of the governing instrument were affected by a mistake of fact or law, whether in expression or inadvertently
mistake cases
- Mahoney plain meaning rule
1. when the language is unclear in its application can extrinsic evidence be introduced to show the testators meaning - Gibbsallowed to strike words of mere identification for mistake
1. “no reformation” - Duke open reformation for mistakes. Extrinsic evidence allowed if C&C then reformation allowed
types of gifts
4
a) General devise: gift from general assets
b) Specific devise: specific gift object, specific in description
c) Demonstrative devise: specific amount from specific fund / place
d) Residuary devise: catch all – all the rest
lapsed gifts: common law rule
when beneficiary does not survive testator, the devise fails and is said to have lapsed.
(i) Gift was made subject to condition that beneficiary survives testator
if beneficiary was dead or gift otherwise void at time of execution
gift is void & goes to residue or intestacy
(gift to a pet)
when a class gift lapses
surviving members divide gift equally and take
when specific or general devise fails
goes to residue or intestacy - if no a anti lapse statute
when portion of residue gift fails
common law v. UPC
pass through intestacy
(i) Traditional rule: no residue of residue rule named living residuary beneficiary only gets what is written to him, the failed residuary gift passes through intestacy
(ii) UPC/majority rule: named living residuary beneficiary takes all
anti lapse statutes
goes to devisee’s descendants rather than residue or intestacy (intent)
(i) When a predeceased devisee is related to the testator in a proscribed way in statute and is survived by one or more descendants who also survive Testator, those descendants are substituted for the predeceased devisee
- Every state has an anti-lapse statute that substitutes beneficiaries for a predeceased named
(ii) Applies to family; not to step kids or friends, distant relatives
class gifts
restatement def
a) Surviving members of the class take if class gift created
b) Restatement 3d
(i) Take as members of a group
* Means identities and shares are subject to fluctuation
(ii) Presume class gift created if terms identify beneficiaries by term of relationship or group label
* Class label and intent to be a class gift
* Rebuttable if language or circumstance establishes intended identities and shares fixed
when there is a named individual in a class gift
(i) majority and upc- gift in equal shares to all the class members because all have the same relationship
(ii) Minority: if people are named individually, the individual gift goes to the named beneficiary and the rest goes to the class. ½ to Dumbledore
ademption
identity and intent rules
specific devise is extinguished and no longer a gift
(i) When specific devisee is no longer in testator’s ownership at death
(ii) UPC identity rule: if specific gift not in estate, the gift is extinguished
* Exception: If removed from involuntary act rule doesn’t apply
* If replaced with something new: devisee takes replacement
* If specific property is sold or mortgaged acting within authority of POA, then right to monetary amount = to net sale price, or loan amount.
(iii) Intent theory: gives replacement or cash value of item
abatement
def / priority gifts
when not enough money to pay debts; creditors have priority
(i) Priority gifts
* First – specific devisees
* Second – general devisees (maybe demonstrative)
* Third – residuary devisees
(ii) Class gift – pro rata rate
(iii) UPC: can ignore priority if shown frustrated testator’s intent
capacity
four elements
a) Nature and extent of the property : property in one’s control
b) Natural objects in bounty : people to give to
c) The disposition of the property : how stuff is given
d) Understanding how all three go together
(i) Fact intensive
lucid interval rule
rule and purpose
a person who is mentally incapacitated part of the time but has a lucid interval during which they meet the standard for mental capacity can make a valid will when the execution ceremony is during the lucid interval
a) Purpose: protect from fraud and undue influence, intention of testator, give more people the ability to make a will
burden of proof for capacity
maj or min rules
a) Majority rule: presume sanity; challengers must show by preponderance of evidence lack of capacity
b) Minority rule: proponent of will must show capacity by preponderance of evidence
insane delusion
analysis and elements
a) Analysis: is there an insane delusion? Definition & Maj. / Min. rules. Causation? Effect test. scheme
b) (1) A false conception of reality one holds against all evidence and reason to the contrary and (2) has bearing on the testator’s plan
(i) Causation is the key
(ii) Mistake may be corrected and still valid
(iii) Between capacity and delusion : has capacity but will invalid if hold on to insane delusion
table of capacity to delusion
Testamentary Capacity
4 part test =
Know or be capable of knowing:
1. Nature and extent of property
2. Natural objects of bounty
3. Disposition of property
4. How 1-3 come together (Middle Ground)
insane delusion
Delusion to which testator adheres despite all evidence and reason (effects testamentary scheme)
key = things that impact disposition
delusion
False conception of reality
defining insane delusion
maj and minority rule
majority rule: factual basis rule
* If there is any evidence to support the testator’s delusion, the delusion is not insane
* If there is no factual basis or evidence to support belief there is an insane delusion.
1. Just show one factual basis and defeats insane delusion and valid will
2. Presume it is a rational belief
minority rule: rational basis rule
* If a rational person can come to the same conclusion as the testator with respect to irrational belief and dispose of property the same way, presume reasonable and not insane delusion
* Could rational person belief; then rational person act; and it effect scheme
factual basis rule
majority rule
*** If there is any evidence to support the testator’s delusion, the delusion is not insane
* If there is no factual basis or evidence to support belief there is an insane delusion.
1. Just show one factual basis and defeats insane delusion and valid will
2. Presume it is a rational belief
**
rational basis rule
majority rule
* If a rational person can come to the same conclusion as the testator with respect to irrational belief and dispose of property the same way, presume reasonable and not insane delusion
* Could rational person belief; then rational person act; and it effect scheme
majority and minority rule general meaning for insane delusion
If no quantum of facts to support belief and impacted testamentary scheme, probably insane delusion under both majority or minority.
* Insanity is a social construct
capacity contests
5!
insane delusion
undue influence
fraud
duress
tortious interference with expectancy
undue influence
def
a) Definition: a donative transfer is procured by undue influence if
(i) (1) the wrongdoer exerted such influence over the donor that it overcame the donor’s free will and
(ii) (2) caused the donor to make a donative transfer that the donor would not otherwise have made
- About the relationship between two people
undue influence
inferring SODR
show by circumstantial evidence
(i) Donor is susceptible to UI
(ii) Alleged wrongdoer had an opportunity to exert UI
(iii) Alleged wrongdoer had a disposition (intent) to exert UI
(iv) Result appearing to be the effect of UI
undue influence
majority rule for presumption - 2 part
(i) (1) Confidential relationship and
* Fiduciary, reliant, dominant/subservient
(ii) (2) Suspicious circumstances
* Unnatural disposition, lack of independent advice, will in secrecy or haste, change in donor
= Presume undue influence. Burden shift to proponent to show voluntary
* Result = void and go to intestacy or DRR
duress
a) Definition: a donative transfer is procured by duress if:
(i) Wrongful act the wrongdoer threatened to perform or did perform a wrongful act that
(ii) coerced the donor into making a donative transfer the donor would not have otherwise made
b) “do this or else” but for the cause
Constructive fraud
c) Restatement on constructive fraud if: 1) false misrepresentation 2) reference to a material fact 3) for the purpose of inducing the other party to rely on such representation 4) on which the other party did justifiably rely, 5) which resulted in damages or injury and 6) a fiduciary relationship between the parties
fraud
def & elements
**a) Definition: **
(i) knowingly or recklessly made a false representation to the donor
(ii) about a material fact that was intended to and did
(iii) lead the donor to make a donative transfer
(iv) that the donor otherwise would not have made
**b) elements of fraud **
(i) misrepresentation of material fact – omission not fraud unless fiduciary relationship
(ii) scienter – intent to defraud
(iii) result – relied on and change in testamentary scheme
(iv) causation – nexus between misrepresentation/scienter and result but for
common law
types of fraud
(i) fraud in execution
* when person intentionally misrepresents character or contents of the instrument signed that is not the testator’s intent
(ii) fraud in inducement
* when misrepresentation causes the testator to execute or revoke a will, or change, to include particular provisions in wrongdoer’s favor
tortious interference with expectancy
a) Only can bring when no other remedy available = usually when probate closed
b) Must prove interference involved tortious conduct not just lack of capacity – such as undue influence, duress, or fraud
c) Elements
(i) Reasonable expectation of inheritance – existence of expectancy
(ii) Defendant’s intentional and tortious behavior that interfered with expectancy – intentional interference with expectancy through tortious conduct
(iii) Causation & Damages
* Possibility of punitive damages
* Need to prove cannot be made through probate contests anymore – U/D, F, D
d) Must be brought after probate closes
constructive trust
an equitable remedy
where one has taken property under will after agreeing outside the will to devote that property to some purpose declared by testator - equity will enofrce a constructive trust to effectuate that purpose
codicils
same requirements as a will
a) Amendment to a will that completes the will or substitutes portion of will by striking it and replacing it
(i) If a writing does not explicitly revoke a will, it is probably an amendment not a revocation
harmless error, holograph, etc may be applied to codicils
ambulatory
wills are ambulatory in nature. subject to amednment or recovation by testator by any time prior to death
revocation presumption
a) If there is a missing will at death and last in testator possession, presume that will is revoked
(i) If a duplicated will is revoked, the other duplicate will is revoked
* Rebuttable presumption
when subs. testamentary instrument makes complete disposition of estate
will usually revoke prior wills by inconsistency even if no explicit revocation clause. If supersede old will in every way
if there is a conflict in codicil and will
instrument made closest to death controls
if main will is revoked but there is also a codicil
apply the codicil and pass the rest through intestacy
common law will revocation rule
3 elements
a) (1) capacity; (2) intent to revoke; and (3) an affirmative step or act
(i) A subsequent writing executed with intent and formalities OR physical act of testator or in the testator’s presence at his request
(ii) Common law rule: writing to revoke must deface the words of actual will
common law will revocation rule
3 elements
a) (1) capacity; (2) intent to revoke; and (3) an affirmative step or act
(i) A subsequent writing executed with intent and formalities OR physical act of testator or in the testator’s presence at his request
(ii) Common law rule: writing to revoke must deface the words of actual will
UPC revocation rule
a) (1) Capacity; (2) intent – presumed in UPC through act; (3) subsequent will or revocatory act on the will with intent and purpose of revocation
b) Act can be cut, tear, burn, touch the words
harmless error rule under UPC
harmless error in will revocation
a) Prove by clear and convincing evidence one wants to revoke a will
(i) Revocation may be by physical act of cancellation whether or not the cancellation touches any words of the will
* Peeing on copy example lol
(ii) Use extrinsic evidence to prove revocation intent
partial revocation of will by act
a) UPC allows partial revocation by act, depends on state
(i) Usually the effect is just removal not adding
revocation of a will by law
a) Marriage – revokes will made before marriage unless made in anticipation of marriage
b) Divorce – always revokes. UPC revokes all relations to EX
c) Birth of children – pretermitted child statutes
dependent relevant revocation
a) If a revocation is based on an assumption of mistaken or misrepresented law OR fact OR fails under the law revocation may be ineffective so the original, prior will be applied
(i) if shown T would prefer old will over intestacy
* multiple wills issue – mistake negates revotatory intent
(ii) testator would not have revoked but for misrepresentation
b) rebuttable presumption if proven revocation based on mistake by C&C evidence
(i) rebut by showing testator’s probably intent
c) essentially a way to get around intestacy when there is a mistake in W2 if W1 is better showing of intent
revival of revoked will
a) If a testator destroys a latter will thinking it will reinstate the prior will, the prior will may be revived and valid
(i) Intentionally destroys a will to bring back another one \
(ii) Get around intestacy if intended to reinstate another will
b) UPC rule
(i) If w2 wholly revoked w1, revocation of w2 by revocatory act does not revive w1 unless evidence of intent to revoke w2 to revive w1
(ii) If w2 revoked w1 in part (codicil), revocation of w2 by revocatory act does not revive rest of w1 unless party arguing against revival shows no intent to revoke w2 to revive part of w1 revoked by w2
(iii) If w2 revoked by later will, w3 doesn’t revive w1 unless text of w3 says such result intended
