Wills Flashcards
Benefits of Wills
1) Less worry about will suppression
2) Parent’s custody recommendations might help kids
3) Appointing a reliable executor and alternate
4) Pay just debts
5) Change time survivor to 30 days
What is needed for a will?
Intent
Capacity
Subjective intent
Animus testandi
Certain intent at the time of the instrument being executed that includes: (1) the intent to make a gift by THAT instrument + (2) the gift to be effective at death
Fleming v. Morrison
A properly executed will but denied because there was no intent for the document to be executed as a will
If there is no animus testandi
Part/All of the instrument can be denied to probate
Dumeland
1995 ND case that admitted a will to probate even though there was no animus testandi
How do mistakes affect wills?
Perhaps means that there is no animus testandi
Mistake in the execution
(1) document signed and not realizing it is a will
(2) contains provisions not intended by the sender
Effect of mistake in the inducement
(1) document is not admitted to probate
(2) do not admit misunderstood portions to probate
Coercion/Duress
substitutes intent is NOT allowed under probate, typically more of an issue about the gifts later on
Undue Influence
overcomes T’s free will through psychological domination and does not require the wrongdoer to take control of T’s mind, it is enough for the wrongdoer took control of T’s actions in executing the instrument
Undue Influence Effect
May result in denial of part/all of the will
Loss of Free Agency Test
1) Influencer have opportunity?
2) Influencer have motive?
3) Are the results unnatural?
4) Was the decedent suspectible to psychological domination?
Variation of Improper Conduct Approach
Loss of free agnecy (opportunity, motive, unnatural results, and susceptibility)
PLUS unethical conduct
Mueller v. Wells
Listed factors:
Opportunity, causation, result, and vulnerability of T
Other factors involved in testing loss of free agency
If T and the WD had a confidential relationship, If WD took bulk of the estate, if T’s intellect was weak, suspicious circumstances
Burden of proof in loss of agency
To proponent, must show BOTH (1) presumed influencer acted in good faith and (2) decedent acted freely
Punitive Damages against undue influence
Common Law: no
NJ case in 2008: yes, if wanton and willful disregard of harmed people
Tough because it imposes their morality of judge/jury
Devises to lawyers
Common law: not undue influence if the lawyer drafts the will and gives themselves a gift
Modern: Yes - rebutting presumption of C+C evidence that no undue influence occurred or legal advice on the will alone (depends on state)
Fraud in the execution
misrepresentation based on the instrument
Fraud in the inducement
misrepresentation about something OTHER THAN the document
Fraud elements
1) Misrepresentation
2) Made with the intent to deceive and purpose influence
3) Causing or inducing a change in behavior
4) Then executing/revoking instrument or not
Puckett v. Krida
Nurses convinced the decedent that her niece wasted her money, but there was a tough showing of misrepresentation
McDaniel v. McDaniel
Found for fraud after there was a change in the will that the son was out-of-state spending money
Key difference in fraud v. mistake
Intent to deceive and purpose
Lantham v. Father Divine
Constructive trust for a will that was not properly executed is fine as a remedy, based on the change of behavior
Fraud Remedies
Deny probate to will
Impose constructive trust if a will was NOT executed because of fraud
Pope v. Garnett
Court imposed a constructive trust on all the heirs – even the innocent heirs – for the benefit of the person who would have taken under the will that was not executed because of the interference of some of the heirs
A possible additional remedy for malfeasance
Intentional interference with expectancy of inheritance (intentional tort)
Schilling v. Herrera
Elements of IIEH: (1) existence of expectancy, tort (undue influence), (2) causation, (3) damages (nothing for Ed)
Defense: no duty to Ed; concealment allows to get around
Wellin v. Wellin
Did not allow the intentional tort, but there is a state statutory remedy to allow it
Codicil
the newer of the two wills if the new revokes the old in part
No contest clauses
UPC and majority: Yes - unless PC for contest
Minority: Yes, exceptions for certain challenges which are allowed
FL: no
Sorts of disputes that come from no contest cluases
1) validity
2) construction
Advantages of no-contest clauses
Reduces litigation
Externalities of no-contest clauses
1) reduce the litigation
2) injustice to those who would’ve taken if there had been a contest
3) might increase undue influence against others
Legal age to make a will
UPC 2-501: 18
Mental Capacity
UPC 2-501/UPC 2-407: burden of proof is on the contestant to show lack of capacity
Requires a sound mind
Can someone with a guardian make a will?
YES!
Standard to write a will is lower than to avoid being a will, lacks capacity may get capacity in a short moment
Disciplinary Board v. Kuhn
Proves evidence needs to be kept for client capacity proof
Sheppard v. Jones
Knowing what the person can will is fundamental
In re McIntyre
Suicidal people can create their own will
Specific Capacity
An insane delusion that materially affects a dispostivie portion of the will
Insane delusion
Belief, that is false, that is persistent (cannot be dislodged by evidence and is contrary)
Levin v. Levin
An insane delusion is a spontaneous conception and acceptance as a fact of which has no real existence, adhered to all against evidence and reason
Materially effect majority view
Must-have-been test: will would have been made but for the insane delusion
No other reasonable way to explain the delusion
Materially Effect (minority)
Might-have-been test: dispositive provision might have been the product of an insane delusion
Remedy for insane delusion
Deny probate to part/all of will
Doughtery
The fact that the son put his dad in a nursing home is not insane, that is not what he wanted, so it is pretty normal and not a violation of specific capacity
Strittmatter
Louisa hating men was an opinion, not an insane delusion - allowed because she was otherwise reasonable
Townsend v. Townsend
proves that court can impose its morality on cases; wanted to give money back to slaves and the court agreed this was insane at the time (1848)
Why require a sound mind?
Devil speaks through insane people
Protects decedent’s family
Provide care + support for the aged
Protect people of unsound mind from exploitation
Honoring an unsound mind would be arbitrary and make the law seem more rational to enhance the rule of law
Cost/Benefit analysis
Honor a later will when someone becomes unsound later? 70% class says no; capacity required to start, opt out later
True result
probate result aligns with the intent of the decedent
False result
probate result that is not what the decedent intended
False positive
Type I error: an instrument not intended to be a will is admitted to probate
False-negative
Type II error: an instrument intended to be a will is denied admission to probate
Are false positives or false negatives rare?
False positives
Why are formalities important?
Reduce false positives (but they can still slip through), formalities can also cause false negatives
Can formalities also prevent false negatives?
Yes - more evidence there is a desire to admit to probate, harder to make a will
Who do formalities protect?
People who trusting from abuse by those who are untrustworthy
Formalities Functions (5)
1) evidentiary (reduce false positives
2) protective ([1] reduce predatory behaviors, [2] allow people to be more trusting than if there were no formalities)
3) cautionary or ritual (impress T with importance of instrument - better planning)
4) channeling (send people to lawyers for better advice in better planning/drafting)
5) reduce administrative costs of probate (less cases)
Does a will require a writing?
YES - comes from the SoF
Wills typed into a cell phone?
Michigan court allowed
Is an audio recording allowed as a will?
No
What must the writing contain?
Animus testandi: express that this instrument is transferring the title of assets at death (AKA objective expression)
Does the UPC require animus testandi?
No, UPC 2-502(c) allows extrinsic evidence to be allowed in to establish that a document is a will
Do wills have to be signed?
Yes, see Chastain (TN court denied a will because it was not signed)
Do some states strictly require signature?
Yes
Where does the signature aspect come from?
Sof
Signature can be used as what to get admitted without witness?
Self-proving affidavit
“Subscribed by testator”
Signing the bottom of the will
What happens when T does not subscribe their will?
Some parts can be admitted to probate anyway, only admit parts of the instrument above the signature, deny entirely
Depends on the state (all three can happen)
Taylor v. Holt
Electronic signatures of wills are permitted
Additional requirement for ATTESTED wills:
SoF requires the witnessing and subscription of three witnesses
Kirkeby v. Covenant House
For a witness’s attestation to be valid, the testator must acknowledge the signature on the will while the witness is perceiving the will
What test does the Kirkeby court require?
Conscious presense: hear them, see them, not as direct
Stevens v. Casdorph
Even though the instrument was the intent of T, it was not let in because the witnesses did not see T sign and T did not watch the witnesses sign
Result of witness signature under UPC 2-502(a)(3)(A)
1) signed by 2 witnesses
2) who saw the T sign within a reasonable time OR!!!!!!!!!
3 T’s acknowledgement of that signature or acknowledgment of the will
2 meanings of “in the presense”
Line of sight: W watches T sign the document
Conscious presense: W comprehends that T is signing
2008 UPC provision on notary witnesses
1 notary = 2 witnesses
To be an attesting witness, when must a person be competent
1) at the time T signs/acknowledges a will/signature
2) at the time the witness signs
To be a witness in probate litigation when must a person be comptenet?
1) at the time T signs/acknowledges a will/signature
2) at the time the witness signs (assuming they are an attesting witness)
3) at the time of probate
What makes a person incompetent to be a witness to a
will?
Mental incompetence: aka the witness must be competent to be a witness in litigation
What makes a person incompetent to witness a will?
If they have a financial interest in the will
Results if a person with $ interest witnesses a will signing?
1) SoF: strike the witness, deny probate (prevent false +)
2) Some ourging statutes: probate the will, strike W’s gift, probate the will but strike W’s gain from the gift in the will
3) UPC 2-505: probate the will, strike nothing
4) CA: presume duress/fraud, deny probate for those reasons
Does Stake like UPC 2-505 rule?
No - influencer of these fraud cases are more careful than being witnesses, kinda silly
ALL THE FORMALITIES OF A WILL:
1) Writing
2) Signed by T
Additional formalities for attested wills:
1) T signed/acknowledged the signature or acknowledged will in the presense of witness
2) Witness signed/acknowledged the signature in the presence of the witness
3) In presense (line of sight/conscious)
4) Witnesses are competent
Informal (holographic wills)
Historically admitted to probate without witnesses, 1/2 states allow, no witness compliance aspect
Requirements for a holographic will
1) signature
2) subscription (some states)
3) date (some states)
4) written by T
5) Intent
What if part of a holographic will is not signed by the T?
Traditional: Deny all
UPC 2-505(b) - the signature and material portions must be in the decedents hand - then carry those portions
Do holographic wills satisfy the functions of formalities?
Might create additional opportunities for undue influence/mistake in admission to probate
Add to litigation
Are oral wills allowed?
Some states in VERY limited circumstances
In Matter of Snide
Husband + wife signed the wrong wills, court crafted narrow exception of allowing the wills to probate
Burton v. Didricksen
The first will was lost by T, which said “White gets everything”
Second will, only 1 witness (T dies intestate)
No substantial compliance which increases the risk of mistake + fraud
Substantial Compliance Doctrine
party complies with statutory requirements by “satisfaction
of the substance essential to the purpose of the statute”
UPC 2-503: Harmless Error
C+C evidence that instrument was intended to be a will is enough for probate
Adopts Australian dispensing power
Benefits to Harmless Error?
Reduce false negatives
Cost of harmless error?
Increase in false positives, predatory behavior (fraud, UI, Forgery), honest mistakes taken seriously, reduce certainty
In re Estate of Horton
D killed himself after writing a will, treated the document as if complied with the formalities through C+C evidence
Does 2-503 require the court to find that all of the purposes of the formalities are satisfied?
NOT ALL - main purpose is the intent requirement
Integration of Wills doctrine
The will is all the papers present at the time and place of execution and intended to be part of the will
Keener v. Archibald
IN has not adopted the integration of wills doctrine
Incorporation by Reference Doctrine
A writing NOT part of a will might be given testamentary effect if it is incorporated by reference into the valid will
If a document is incorporated by reference:
It is NOT part of the formal will
Part of the probate file
Recipients under the document are called: devisees
(few states do not allow)
Incorporation by reference requirements:
Language in the will that manifests as an intent to incorporate another writing (UPC 2-510)
Writing must exist at the time of will creation
What do some states also require for incorporation by reference?
Existence of document at death
Will refers to the document being in existence at the time of execution
Subsequent Statement/List
UPC 2-513: allows these to have some testamentary effect
Requirements of subsequent statement/list (UPC 2-513)
1) will refer to the writing
2) only for tangible property not devised in will, not money
3) writing describes the items and persons with reasonable certainty
4) signature
Acts of Independent Significance
UPC 2-512
If the contingency affecting the disposition might be determined by factors other than the purpose to make a devise, T’s actions are allowed to change the will without formalities
After a will’s execution it remains:
ambulatory: it can be amended or nullified
Revocation
process of making a valid will ineffective (in whole or in part) requires this
Methods of revocation by law:
Occurs when the decedent changes status
Includes: marriage, divorce,
Divorce - Revocation
Common Law: total revocation of wills existing at divorce
UPC 2-804: partial revocation of gifts in wills and other instruments to the former spouse + their kind (treated as if disclaimed)
Statutes vary: some revoke gifts in will, gifts to former spouse only
Marriage - Revocation
Some states: total revocation wills that did not provide for marriage
UPC 2-804(f): No revocation
Volitional revocation
Decedent choice to alter the effectiveness of a will
What must the decedent have to revoke the will volitionally?
1) Intent (NO coercion, fraud, mistake, UI)
2) Capacity
Methods of volitional revocation
1) Instrument (same formal reqs. as a will, can wholly/partially revoke, expressly revoke or by inconsistency)
- By revocatory act to the will (destruction, cancellation, obliteration)
Milbourne v. Milbourne
Revocation by volition was not allowed because the intent was not there - there was undue influence
Thompson v. Royall
Judge writing on the back: “This will is null and void” did not make it null and void because there were no other witnesses nor was it holographic
Revocatory act - touching the will
Some courts: require the physical act touch the words of the will
UPC 2-507(a)(2): act does not need to touch the words of the will
Partial revocation
By instrument: the statute allows the will itself to be in writing - focus on the prevention of fraud
(NY and IN do not allow)
Non-revocations
When an attempted volitional revocation is ignored even though it meets all the requirements, not a revival of the old will
Dependent Relative Revocation
Revocation was dependent or conditioned on a related will being admitted into probate
Since the related one is not admitted, the condition is NOT satisfied
The will or part is not revoked
Fiction of DRR
Revocation was intended to be conditional and since that revocation did not occur, it fails
Reality of DRR
There was a mistake in the inducement about the original will (being admissible to probate or another mistake of fact in the instrument)
Can the decedent’s intent overcome DRR?
Yes - if the intent of recognizing the revocation is closer to the intent of the decedent
Can a revoked will be brought back to life?
YES!
UPC 2-507(a)(1) - partical revocation by inconsistency
(some states do not allow or make Will #2 supersede Will #1)
