Wills Formalities

Question 1

Requirements of a Valid Will

Answer 1

1. Legal Capacity. TPC 251.001
   
   1. Age 18 or older,
   2. Currently or previously married, or
   3. Current member of the armed forces of the U.S.
2. Testamentary Capacity (“of sound mind”)
   
   1. Sufficient mental ability to understand:
      
      1. Extent and scope of the testator’s property (the what)
      2. Natural objects of testator’s bounty (the who)
      3. Effect of legal act of disposition (the purpose)
      4. Relate all above elements together at same time.
3. Testamentary Intent
4. Formalities (attested wills under TPC 251.051 and holographic wills under TPC 251.052)

Question 2

Types of Wills

Answer 2

Attested Wills, Notarized Wills, and Holographic Wills

Question 3

Attested Wills - Core Formalities

Answer 3

1. Writing
2. Signature
3. Attestation by witnesses
   
   1. Number varies by state (UPC and Texas require 2)

Question 4

Attestation - Witnesses Witnessing in Each Other’s Presence?

1. Majority
2. Minority

Answer 4

1. Majority - Most states DO NOT require the witnesses to be together either
   
   1. (1) when the testator signs or acknowledges the will, or
   2. (2) when the witnesses attest to the will.
2. Minority - The 1837 Wills Act required the witnesses to be present at the same time when the testator signed or acknowledged the will. (Minority Rule)

Question 5

Attestation - Majority, UPC and Texas Rules

Answer 5

1. Majority Rule – each witness must sign the will in the testator’s presence (designed to prevent fraud).
   
   1. Conscious Presence (majority) - 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.
   2. Line of Sight (minority) – witnesses and testators have to be within each other’s line of sight to be in eachother’s presence (unless blind).
2. UPC 2-502(a) – the witnesses must within a reasonable time after seeing testator sign or acknowledge his earlier signature.
   
   1. They don’t have to sign during the testator’s lifetime, but they have to sign it within a reasonable time
3. Texas – Unlike many states, Texas law does not require the witnesses to attest in each other’s presence or the testator to sign the will in the presence of the witnesses, so long as the execution and attestation of a will occurs at the same time and place and forms part of one transaction (aka “continuous transaction view”).

Question 6

Attestation Clause (UPC)

Answer 6

A clause that recites that the will was duly executed in accordance with the applicable wills act.

1. UPC 3-406(3) – attestation clause not required, but creates a rebuttable presumption of a valid execution.

Question 7

Self Proving Affidavit

1. Definition
2. Methods
3. Legal Effect

Answer 7

1. Self-Proving Affidavit – instead of the testator putting an attestation clause in the will, the witness can sign a self-proving affidavit—a sworn declaration under oath that the will was duly executed.
2. UPC 2-504 – Two Methods of Self Proving Affidavits –
   
   1. One Step - Combined attestation clause pus self-proving affidavit.
   2. Two Step (Most States) -
      
      1. attestation clause with will.
      2. Then notarize SPA separately.
3. Legal Effect –
   
   1. UPC 3-406(1) – if a witness is self-proved, questions of due execution are not contestable except with evidence of fraud, or forgery of the acknowledgment or affidavit.
   2. Other States – may only give rise to rebuttable presumption of due execution.
4. Texas - A validly executed self-proved will may be admitted to probate without the testimony of any subscribing witnesses.

Question 8

Signature Requirement

1. General Rule
2. Order of Signing
3. Subscription
4. Delayed Attestation (UPC)

Answer 8

1. General Rule – in all states, and UPC 2-502(a), testator is required to sign the will.
   
   1. Full name is preferable, but a mark (such as initials or abbreviation) intended as a signature is sufficient.
2. Order of Signing – generally testator needs to sign or acknowledge before witnesses sign.
3. Subscription – a minority of states require the signature at the end of the document.
4. Delayed Attestation – under UPC 2-502(a)(3)(A), witness must attest to the will within a reasonable time (which could even be after the testator’s death).

Question 9

Is the Testator Required to Identify the Date and Executor in Will?

Answer 9

General Rule - wills generally are not invalid for failure to identify the date of its making or the executor of the estate.

Question 10

Interested Witnesses and Purging Statutes -

1. Majority/Texas Rule
2. Minority/UPC

Answer 10

1. Majority/Texas Rule on Purging– an interested witness forfeits their devise in excess of what they would have received through intestacy if they testify in probate court.
   
   1. Only applies to a witness who is necessary to confirm a will’s validity.
   2. Supernumerary Exception - If the will is witnessed by enough disinterested people (Texas requires one other disinterested witness), the interested witness is supernumerary and may take his full devise.
      
      1. Doesn’t have to be an attesting witness on the will itself (e.g., could be the attorney who attended the will signing).
2. UPC/Minority - no requirement that any of the witnesses be disinterested; an interested witness is not purged of his devise.

Question 11

Interested Witnesses and Purging Statutes - Minority/UPC Rule

Answer 11

a large minority of states, and the UPC 2-505(b), do not require any probate witness to be disinterested and do not purge an interested witness of their devise.

Question 12

Safeguarding a Will

Answer 12

1. Lawyers should generally refrain from keeping a client’s will unless the client asks them to.
2. Many states and UPC 2-515 provide for deposit of a will with local probate court clerk.
   
   1. But most people don’t know about this and there is no national registry.

Question 13

Substantial Compliance Doctrine

Answer 13

The court may deem a defectively executed will as being in accord with statutory formalities if there is clear and convincing evidence that the purposes of those formalities were served.

1. Majority of states do not follow, or have stricter variations of it.

Question 14

Harmless Error Rule Under UPC

Answer 14

UPC 2-503 –The court may excuse noncompliance if there is clear and convincing evidence that the decedent intended the document to be his will, a partial or complete revocation of a will, an addition or alteration to a will, or partial or complete revival of their formerly revoked will.

1. UPC 2-503 and 11 States follow (but not Texas)
2. not enough that testator had intent to change will. Has to intend that specific document be the revised/substitute will.

Question 15

Does a Will Need to be on Paper?

Answer 15

1. A will need not be on paper.
2. All that is required is that the will be in the form of a reasonably permanent record.
   
   1. Example - courts have found that will written on galaxy tablet with stylus was testator’s will.

Question 16

Notarized Wills

Answer 16

Notarized Wills - Notarized wills are valid in only two states:

1. Colorado
2. North Dakota

Question 17

Holographic Wills -

1. General Rule
2. Attestation?
3. Who Follows?
4. Effect?

Answer 17

Holographic Will – For a holographic will to be valid, it must be in writing, signed by the testator, and in the testator’s handwriting, and the testator must have had the capacity and intent to execute a will.

1. Doesn’t need to be attested (i.e. witnessed)
2. About Half of States (Including Texas) and UPC 2-504(b) allow
3. Holographic wills and formal wills have the same effect. Either may revoke the other and either may act as a codicil to the other.

Question 18

Conditional Wills

Answer 18

Conditional Wills – wills written to become operative upon the happening of a particular event (e.g., death by surgery).

1. Majority Rule – presumption that language of condition is not meant to be a condition but rather a statement of the inducement for making the will.

Question 19

Preprinted Wills Forms -

1. Formal Wills?
2. Holographic Wills?

Answer 19

Preprinted wills that do not meet the Wills Act requirements cannot be probated as a formal will. BUT, several states allow such filled-in forms to be probated as holographic wills.

Question 20

Holographic Wills - Signature Rule

Answer 20

Signature – in nearly all states that permit holographic wills, the testator may sign the will anywhere on the face of the document.

1. But not signing at the end may raise doubt as to whether the handwritten name was intended as a signature.

Question 21

Pre-Printed Wills Forms and Holographic Wills - Extent of Testator’s Handwriting

Answer 21

Extent of Testator’s Handwriting – three generations of statutes:

1. 1^st Gen – entirely written, signed, and dated only in the testator’s hand.
   
   1. About 9 states follow
2. 2^nd Gen (a.k.a “surplusage theory”)– material provisions under which the handwritten portion of the instrument should be given effect as a holographic will if it makes sense without the text not written by the testator.
   
   1. E.g., date and introductory matters immaterial.
   2. 9 states and Texas follow this approach.
3. 3^rd Gen & UPC – focuses on material provisions and extrinsic evidence allowed to show intent
   
   1. _​_About 9 states follow.

Question 22

Revocation of Wills -

1. general rule
2. oral revocation
3. automatic probate (UPC)
4. Ambulatory wills

Answer 22

All states permit revocation by a subsequent writing under the Wills Act or by a physical act, such as destroying the will.

No Oral Revocation – an oral declaration that a will is revoked is usually insufficient on its own.

Automatic Probate – UPC 2-507 – if a duly executed will is not revoked according the to the revocation statute, it must be admitted to probate.

Ambulatory Will – A will is subject to amendment or revocation by the testator at any time prior to death. All states permit revocation by a subsequent writing under the Wills Act or by a physical act, such as destroying the will.

Question 23

Revocation of Wills - Revocation by Writing

1. Express Revocation
2. Implied Revocation
   
   1. UPC Incomplete/Complete Disposition

Answer 23

Express and Implied Revocatory Writings – a writing executed with Wills Act formalities may revoke an earlier will in whole or part.

Express Revocation – writing expressly revokes prior will

Inconsistency/Implied Revocation – subsequent will doesn’t include revocation clause but is inconsistent with prior will’s provisions.

1. Incomplete Disposition of Testator’s Estate - UPC 2-507 – presumption that a complete disposition of the testator’s estate revokes the prior inconsistency. If not complete disposition of entire estate, subsequent will is treated as a codicil (ie., supplemental change)

Question 24

Revocation of Wills - Revocation by Physical Act

1. General Rule
2. Physical Act
3. Partial Revocation

Answer 24

General Rule - UPC 2-507(a) – A will or part thereof is revoked by performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part.

1. Requirements -
   
   1. Capacity to revoke;
   2. Intent to revoke; and
      
      1. Must be a present intent to revoke, not a future intent. (e.g., “I should change my will” is insufficient)
      2. Accidental destruction means no intent.
   3. Physical Act - A satisfactory physical act performed on the will, such as drawing lines through testator’s signature, burning, tearing, canceling (e.g., writing void or cancelled over dispositive provisions), obliterating, or destroying the will or any part of it.
2. Physical Act By Someone Other Than Testator – must be in testator’s conscious presence and at his direction.
3. Physical Act Must Touch Face of Relevant Provisions? –
   
   1. UPC – No
   2. Majority – Yes.
4. Partial Revocation by Physical Act
   
   1. Majority and UPC 2-507 – authorizes partial revocation by physical act.
   2. Minority Rule – only allow partial revocation by a subsequent writing.

Question 25

Revocation of Wills - Texas Rule

Answer 25

TXEC 253.002 - A written will, or a clause or devise in a written will, may not be revoked, except:

1. by a subsequent will, codicil, or declaration in writing that is executed with like formalities, or
2. by the testator destroying or canceling the same, or causing it to be destroyed or canceled in the testator’s presence.

Question 26

Presumptions of Revocation - By Physical Act

Answer 26

Rebuttable presumption that when a will last known to be in the testator’s possession is found in a mutilated condition, the testator intended to revoke it.

1. Can rebut with clear and convincing evidence

Question 27

Presumptions of Revocation -

1. Lost Wills
2. Probating Lost Wills

Answer 27

The Lost Will Doctrine - Where Testator’s will was in T’s possession or when he had ready access to it when last seen, failure to produce it after his death raises the rebuttable presumption that the testator had destroyed it with an intention to revoke it.

1. Rebutting Presumption - Can rebut presumption with clear and convincing evidence that the original is lost, hidden, withheld by disgruntled heir, or accidentally (rather than intentionally) destroyed.

Probating a Lost Will - The will proponent is required to prove:

1. The due execution of the lost will;
2. The cause of the nonproduction; and
3. The contents of the lost will (substantially proved by a credible witness who has read either the original or a copy of the will, has heard the will read or can identify a copy of the will.)
   
   1. Exact wording of will need not be proved, only substance of form.
   2. If contents cannot be proved in full, will is entitled to probate to extent its contents are proved.

Question 28

Revocation of Copy of Will by Physical Act

1. Majority
2. UPC
3. Restatement 3d

Answer 28

By Physical Act –

1. Majority - Physical act to revoke needs to be done to the original, not a copy.
2. UPC – doesn’t create harmless error provision for physical act revocation, only for writing revocations
3. Restatement 3d – revocatory physical act on copy of will sufficient if proven intent of testator by clear and convincing evidence.

Question 29

Dependent Relative Revocation -

1. Definition
2. Effect
3. Limitations

Answer 29

1. Definition - if testator tries to revoke her will upon a mistaken assumption of law (e.g., invalidity) or fact (e.g., family member is dead), under the doctrine of dependent relative revocation the revocation is ineffective if the testator would not have revoked the will but for the mistaken belief.
2. Effect - court will probate the old will.
   
   1. Without DRR, both wills would be invalid, and the testator’s property would pass through intestacy.
3. Limitations - DRR can only apply when there is clear intent of the testator that the revocation of the old will is dependent upon the new will’s validity and carrying out the testator’s intent.
   
   1. This clear intent is usually evidenced by the previous and subsequent wills being substantially the same.

Question 30

Revival of Revoked Wills -

1. Definition
2. Majority and UPC Rule
3. Minority/Texas Rule

Answer 30

1. Definition - the doctrine of revival governs the reinstatement of a previously revoked will
2. Majority and UPC View - upon revocation of will 2, it is presumed that will 1 is revived if the testator so intends.
   
   1. Intent for Revival – shown by circumstances surrounding the revocation of will 2 or from the testator’s contemporaneous or subsequent oral declarations that will 1 is to take effect.
3. Minority/Texas View - a revoked will cannot be revived unless re-executed with testamentary formalities or republished by being referred to it in a later duly executed will.

Question 31

Revival of Revoked Wills - Special UPC Rules

Answer 31

1. Full Revocation by Physical Act - UPC 2-509(a) - if a subsequent will that wholly revoked the previous will is itself revoked by physical act, the presumption is that the previous will remains revoked.
2. Partial Revocation by Physical Act - 2-509(b) - if a subsequent will that partly revoked the previous will is itself revoked by physical act, the presumption is that the previous will is revived.
3. Subsequent Wills - 2-509(c) - if a subsequent will (will 2) that revoked a previous will (will 1) is itself revoked by another, later will (will 3), the previous will (will 1) is revived to the extent indicated by the later will (will 3).

Question 32

Revocation by Operation of Law -

1. Divorce
2. Marriage
3. Birth of Children

Answer 32

1. Divorce – Statutes in nearly all states provide that a divorce presumptively revokes any provision in a decedent’s will favoring the divorced spouse. See UPC 2-804.
2. Marriage – most state statutes hold that a premarital will remains valid in spite of a subsequent marriage,
   
   1. Surviving Pretermitted Spouse - a surviving spouse whom the decedent spouse married after executing their will may take from the intestate estate unless will says otherwise. See UPC 2-301.
      
      1. Effect – revokes premarital will to extent of pretermitted spouse’s intestate share.
3. Birth of Children
   
   1. Minority View – marriage followed by birth of children revokes a will executed before marriage.
   2. Majority and UPC 2-302 View – a child born after the execution of a parent’s will, and not mentioned in the will, gets a share of the parent’s estate.

Question 33

Components of a Will - Integration

Answer 33

Integration – under the doctrine of integration, all papers that are present at the time of execution and are intended to be part of the will are treated as part of the will.

1. Can avoid issues of integration by having pages numbered, fastened together, and having testator sign or initial each page.

Question 34

Republication by Codicil -

1. Definition
2. Effects
   
   1. on incorporation by reference
   2. interested witnesses
   3. squeezing out

Answer 34

Republication by Codicil – a validly executed will is treated as re-executed (“republished”) as of the date of the codicil unless doing so would be inconsistent with the testator’s intent.

Effects -

1. Incorporation by Reference – a document that is referenced in the will but may not have been in existence at the time the will was executed would normally not be incorporated by reference. However, if the document later comes into existence and the will is republished by codicil, this moves the date forward on the will and allows the separate document to be incorporated by reference.
2. Interested Witnesses – republication can alter who constitutes the subscribing witnesses to the will. If the original subscribing witnesses are not the witnesses to the subsequent codicil, they will not have to be purged of their gifts if they have to testify.
3. Squeezing Out - Suppose that a testator revokes his first will by a second will and then executes a codicil to the first will. If the first will is republished, the second will is revoked by implication (“squeezed out”).

Question 35

Incorporation by Reference -

1. Generally
2. Texas and UPC Rules
3. UPC Rule on Subsequent Writing and Tangible Personal Property

Answer 35

Incorporation by Reference – “Incorporation by Reference” allows for a writing that was in existence but not present at the time of execution and that was not itself executed with testamentary formalities to be absorbed into the testator’s will.

Texas and UPC 2-510 – a writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.

1. Three elements: (1) testator’s intent; (2) document in existence at time of will; and (3) susceptible of identification.
2. Writing can be something as simple as a list or memorandum.

Subsequent Writings and Tangible Personal Property - UPC 2-513 – a testator may dispose of tangible personal property by a separate writing, even if prepared after the execution of the testator’s will, provided the will makes reference to the separate writing.

1. Writing must be signed by testator and describe items and devisees with reasonable certainty.
   
   1. List of items can’t include money.
2. Testator may amend the writing after its creation.
3. Writing doesn’t need to be witnessed

Question 36

Acts of Independent Significance

Answer 36

UPC 2-512 - A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator’s death.

Effect - the gift will be upheld even if the beneficiaries or property bequeathed will change by something outside of the will. (I.E. replacing the car)

Question 37

Contracts Relating to Wills -

1. Generally
2. UPC Rule
3. Texas Rule

Answer 37

General Rule – testator may exercise freedom of contract to bind herself to a particular exercise of her freedom of disposition at death by way of a contract to make a will or not to revoke a will.

1. Can be enforced in contract by party to contract.
2. Contracting party usually entitled to damages for breach in form of constructive trust.

UPC Rule - A K to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after the effective date, may be established only by:

1. Provisions of a will stating material provisions of the contract;
2. An express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or
3. A writing signed by the decedent evidencing the contract.

Texas Rule - A contract executed or entered into on or after September 1, 1979, to make a will or devise, or not to revoke a will or devise, may be established only by:

1. a written agreement that is binding and enforceable; or
2. a will stating:
   
   1. (A) that a contract exists; and
   2. (B) the material provisions of the contract.

Question 38

Execution of Joint or Reciprocal Wills -

1. UPC and Texas Rule

Answer 38

UPC and Texas - The execution of a joint will or reciprocal wills does not constitute by itself sufficient evidence of the existence of a contract.

Must show clear and convincing evidence of contract not to revoke will