WILLS, TRUSTS AND ESTATES I - Newman Fall 2010

Philosophical Justifications and Limitations, Policy of Passing Wealth at Death

Against Conveyance Limitations For Limitations

● Free County – people ought to dispose of

property as they choose

● Economics – Allows for a savings base to

provide for capital investment

● Prevent concentration of wealth in a small

number of people

● Equal Opportunity – America!

Locke – natural right Jefferson/Blackstone – Not a natural right, not

constitutionally protected

Dead Hand Control

Controlling property beyond death. Traditional law respects the property rights of the decedent.

It’s allowed to an extent (e.g. RAP). But to what extent should the dead hand control behavior?

Restatement (3rd

) of Property §10.1 – Donor’s intention determines the meaning of a donative

document as is given effect to the maximum extent allowed by law:

The controlling consideration in determining the meaning of a donative document is the donor’s

intention. ~ Maximum extent by law.

Public Policy on Restrictive Conditions – any provision that is intended or tends to encourage

disruption of the familial relationship generally. Covenants that restrict fundamental rights are

generally void (e.g. restricting practice of religion, right to marry)

Gifts that are conditioned on marrying within a particular religious class or faith are

reasonable [Shapira].

Reasonableness depends upon age of devisee, number of available women in area, etc.

Gifts that end after remarriage justified that T can support the spouse as long as needed.

Restraints generally depend on the facts and circumstances –

Incentive Trusts – Often are educational incentives – encourage beneficiary to get a degree

Moral incentives – upheld because of the benefits.

Concern: You don’t want Paris Hiltons running around.

TRANSFER OF THE DECEDENT’S ESTATE

Newman cannot understate the importance of the distinction between Probate and Non-

Probate Assets. Most stuff passes non-probately. UPC doesn’t make the distinction.

Probate Non-Probate

● Passes through will or

intestacy

● Requires Court

Proceedings

● Expensive

● Instrument other than a will

● Generally only need a death certificate

● Joint-tenancy, life insurance, contracts w/ payable death

provisions. Interests in trusts.

Terminology -

Testate – Executor; Intestate – Administrator; UPC – Personal Representative

ADMINISTRATION OF PROBATE ESTATES

Functions of Probate –

1. Determines who gets the property, acts as Evidence of transfer of title to the new owners

(clears titles);

2. Protects Creditors – establishes procedure for payment

a. These people come first (funeral expenses, administrative, court costs, taxes, bills,

etc) – funeral costs have top priority

3. Distributes Property

Procedure –

Determine Decedent’s domicile – primary, ancilliary

Determine Form of Probate

Common Form – ex parte, no notice, by oath.

Solemn Form – involves court, with notice

Tension – level of supervision required of the Probate Court – high supervision vs.

independent control of personal rep.

UPC accommodates for both situations

Creditors Statute of Limitations – non-claim statutes – 2 forms

Bars claims not filed in relatively short time ~ 2-6 months.

Regardless of whether probate proceeds – 1-5 years after death

Notice to creditors required (DPC)

Closing the estate – discharge by court to relieve fiduciary duty/liability of rep

Costs – Probate & Atty’s fees. Commissions to rep, guardian ship, appraiser.

Necessity – Probate can be avoided by non-probate transfer

Intervivos Trust or Joint Tenancy transfer

Personalty – title isn’t necessary, generally – Cars can get rights of survivorship w/o probate.

PROFESSIONAL RESPONSIBILITY

Duties to Intended Beneficiaries

Malpractice – Duty runs from drafting attorney to an intended beneficiary

a. Identified beneficiary has third-party beneficiary status.

i. (Minority) Ohio doesn’t recognize this duty – wants attorney to have an

undivided duty.

b. Rationale: Duty is based in foreseeability of injury to the intended beneficiary.

Conflicts of Interest

Duty of Confidentiality isn’t absolute – fraud exception – material circumstances that could

seriously injure one client or cause substantial detriment

INTESTACY: AN ESTATE PLAN BY DEFAULT

1. Basic Scheme – Intestate rules are the default rules. It’s the Assumed intent of the average

intestate decedent. They apply unless there’s a will or your property passes via will

substitute.

● Secondary ~~ family protection ~ but to get around , all you need is a will.

2. Statutory Regime – Notice given to heirs. Heirs have right to sue if they get less than

statutory amount. Domicile of decedent determines JD.

● Terminology –

○ Heir – person who takes via intestacy, determined by statute. Exists only at death

○ Heir apparent – have expectancy of inheritance

○ Descendant – children, grandchildren (Issue)

Order of taking Spouse Descendant (Per Stirpes/UPC) Ancestor 1st Line Collateral

2nd

line Collateral

3. Fiduciary Duties – cannot draft will for someone who lawyer believes incompetent.

UPC: 2-102. Share of Spouse: The intestate’s share of a decedent’s surviving spouse is:

1. the entire intestate estate if:

(A)No descendant or parent of decedent survives decedent, or;

(B)All of the decedent’s surviving descendants are also descendants of the surviving spouse

and there is no other descendant of the surviving spouse who survives the decedent;

2. The first [$300,000], plus three-fourths of any balance of the intestate estate, if no descendant of the

decedent survives the decedent, but a parent of the decedent survives the decedent;

3. The first [$225,000], plus one-half of any balance of the intestate estate, if all of the decedent’s

surviving descendants are also descendants of the surviving spouse and the surviving spouse has

one or more surviving descendants who aren’t descendants of decedent;

4. The first [$150,000], plus one-half of any balance of the intestate estate, if one or more of the

decedent’s surviving descendants are not descendants of the surviving spouse.

Simultaneous Death Act (of Spouses)

UPC 120-Hour Rule – Treats spouse as having predeceased the decedent. doesn’t have to be

common disaster. Probate & Non-Probate

Rationale – experts are costly, fighting over timing is costly. T’s intention honored

this way.

Ohio – applies to Probate, silent on Non-probate.

Janus v. Tarasewicz – H & W eat some poison, life insurance pays out to wife’s estate. Issue

over who died first. Check up from the neck up – brain dead = dead first.

Shares of Descendants English Per Stirpes Modern Per Stirpes UPC Per Capita at Each

Generation

● Followed by 1/3 of the states

● Treats each line of descendants

equally, divided into as many

shares as there are living children.

Children take by Representation.

● Half the States

● Treats equally each

line at the closest

generation (living)

● Look to see if any

children survived D.

● If Yes English

● If No Divide

equally at that

generation – shares

drop down to

Children.

● Dozen or so states

● Rationale – it’s likely

the intention of D is not

to treat grandchildren

differently.

● Treats each taker at

each generation equally

● Initial division made at

first surviving

generation.

Negative Disinheritance –

● Rule in most states – if devisee doesn’t get it under the will, he can take residual property

that didn’t pass by intestacy

○ UPC §201 (b) – Barred heir is treated as if he disclaimed his intestate share, which

means he’s treated has having predeceased the intestate decedent.

Shares of Ancestors and Collateral

1. Collateral Kindred – Blood related, but neither ancestor nor descendant

a. First line collateral – descendants of the decedent’s parents – other than

decedent’s descendents.

b. Second-line collateral – descendants of the decedent’s grandparents (other than

the decedent’s parents and their descendents)

c. If decedent is not survived by spouse,

Parentelic System Degree of Relationship UPC

Estate passes to grandparents, and

their descendents. If none

grandparents, etc, down each line

descended from an ancestor until an

heir is found.

Estate passes to the

closest of kin, which is

determined by counting

degrees of kinship.

If decedent has no

descendants/ancestors

Step children escheat

UPC + Large Maj.

Half Bloods = Full (Ohio,

Laughing Heir – so distantly related,

laughing to the bank.

Ohio – parentelic to grandparents

degree of relationship step-

children escheat.

Count steps up from D to

nearest common ancestor,

then count down.

too)

FL, TX = ½ Share

OK = Excluded if full.

Transfers to Children - Meaning of Children – Goal is to protect intent of T. Difficult to

predict with complex families.

● UPC Rule – an adopted individual is a child of his or her adoptive parents.

● Exceptions:

○ If adoption removes the child from the families of both of the genetic parents, the

child is not a child of either genetic parents

○ If adoption is by relative ~ severs the relationship, except that the child can inherit

through the genetic parents, but not vice versa

○ If adoption is by stepparent, the adopted stepchild is not only a child of the adoptive

stepparent, but is also a child of the genetic parents. UPC §2-114(b) – the adopted

stepchild is also a child of the other genetic parent for purposes of inheritance from or

through the child, but not for purposes of inheritance from or through the child

Restatement - §2.5 UPC §2-116

Parent-Child Relationship ~ adoptions by stepparent or

family member, retains inheritance.

Natural parent can’t go through child for inheritance, but

child can go through parent. Adoption out of family no

inheritance from natural.

Key determination is whether

there is a parent-child

relationship.

● If yes, then they equal a

parent-child for intestate

succession.

Adult Adoption – most intestacy statutes don’t distinguish child and adult adoptee.

○ Minary v. CFB – Minary dies leaving residue in trust to pay income to sons last

surviving son dies, pays out to heirs under law. Son adopts wife. Held: adoption of

an adult for the purpose of bringing that person under the provisions of a pre-existing

testamentary instrument when she clearly wasn’t intended to be covered should not be

permitted.

○ Cases / Jurisdictions are split on the Minary issue.

Adoption & Interpretation – barring a statement by the intestate decedent, adopteds are

issue.

Posthumous Children –

○ Posthumous Born Children - Conceived before but born after father’s death.

Child’s advantage to be considered ―in being‖ at conception

○ Posthumous Conceived Children – Conceived

○ Uniform Parentage Act §204 - Rebuttable presumption that normal period of

gestation is 280 days. Burden on proof on child. – 300 days

Non-Marital Children - out of wedlock – Trimble v. Gordon – treating bastard kids

differently is against EPC, intermediate scrutiny. Most states amended intestacy statutes to

include bastard kids.

Lalli v. Lalli – upheld NY statute permitting inheritance by a nonmarital child from the father

only if the father had married the mother or had been formally adjudicated the father by a

court during the father’s lifetime

JD’s Split on father inheriting from the kid.

Reproductive Technology and New Forms of Parentage

○ Posthumous Children – Rule – Donor must: clearly and unequivocally consent to

posthumous reproduction and the support of any resulting child. Burden is on the

surviving parent to prove both.

■ Woodward v. SS – H has disease, sperm frozen, dies, M uses it have 2

kids. SS argues not ―in being‖. Are they Issue? Held: Child may be

issue under certain circumstances.

UPC §2-120 – Signed writing, or consent is otherwise proved by clear and convincing

evidence (intent) AND the child is in utero not later than 36 months or is born not later than

45 months after D’s death.

Restatement – must be born within a reasonable time to treated as conceived before death.

Tension – certainty and finality vs. the human desire to bear children.

In re Martin B. – trust set up, son James dies, but has kids from frozen sperm. Are they issue?

Held: They are, J intended the kids to be born. Certainty and finality aren’t an issue since trust

administration is on going.

Assisted Reproduction and Same-Sex Couples: (rising issue.)

2008 amendments to the UPC—(2-120) a child conceived by assisted reproduction other than

gestational surrogacy is in a parent-child relationship (and entitled to inherit by, from, or

through), the child’s birth mother—can also be parent-child relationship with another person

if the other person either consented in writing to assisted reproduction by the birth mother

with the intent to be the other parent of the child or functioned as a parent of the child within

two years of the child’s birth.

ADVANCEMENTS

Common Law Rule (minority) – any lifetime gift to child presumed to be an advancement.

Burden on the taker to show that it isn’t an advancement. There must be no quid pro quo.

○ If LOAN > Share Child pays back money to estate

○ If ADVANCEMENT > Share Child keeps.

○ Rationale – assumed that parent would want each kid to have equal share during

lifetime

1. Some states presume that any lifetime gift is not an advancement

○ If GIFT hotchpot. Ex. O A, B, C. $10K goes to A as an advancement in life. O

has $50K in assets. Add the advancement plus

○ Criticisms: intent isn’t really clear (gift could be b/c of favoritism). Also, given avg.

life expectancies, finding out

○ Education isn’t normally an advancement, but what about grad school

UPC §2-109 – Transfer is only considered an advancement if D declared in a

contemporaneous writing or the heir acknowledged in writing that the gift is an

advancement or the gift is taken into the account and distribution of the estate

If taker dies before D, the property isn’t taken into account in computing the division and

distribution of D’s estate unless D writes otherwise.

Rationale – most of the time, parents make gifts, they don’t consider it will effect the

distribution of the estate

Avoid evidentiary issues of intent

GUARDIANSHIP AND CONSERVATORSHIP OF MINORS

1. Guardian of the person – parental rights over the minor, responsibility for the minor child’s

custody & care – responsible for care of child, not property

Guardian of person terminates Majority reached, Dies, Adopted.

One Parent Living Natural Guardian of Child

One Parent is a Deadbeat Property held in trust with another relative

Both Parents Dead Court appointed guardian, usually relative

Property Management Options

Type Features Creation

Guardianship of

Property

Strict court supervision, expensive and

time consuming. Court approval required

for any action

Intestate – court appoints

guardian. If small estate

administrator.

Will – requires guardianship if

not minor. Will nominates,

Court appoints.

Conservatorship Modern Streamlined Guardianship,

flexible, annual accounting (main

difference between this and guardianship)

Same as above.

Custodianship Custodian has F/D – required to xfer

property to child (18/21) – Custodian has

right to manage property/reinvest, no

accounting req’d. Good for small estates.

Created by Will Substitute -

one size fits all – a poor man’s

trust. Dictated by statute. Most

states, terminates @ 21

Trust Trust Instrument sets rules – restricted

only by Public Policy & RAP. No Court

supervision. Trustee is fiduciary

Beneficiary would have to sue if blowing

money, stealing

BARS TO SUCCESSION

1. Slayer Statutes – Treats slayer as predeceasing the decedent. As if they had disclaimed.

Rationale – can’t benefit from your killing

a. Other similar statutes – abused elderly or abandoned spouse.

b. Majority view & UPC §2-803 – killer is predeceased disclaim. Acquittal isn’t

dipositive, as the standard is Preponderance of Evidence (conviction requires PBRD,

plea agreements to lower charge.)

i. OH and UPC apply this to will substitutes.

c. In re Estate of Mahoney – intestate D killed by widow. No slayer statute. Court

comes up with the idea of Constructive trust for heirs/next of kin. To be held by

slayer in trust.

d. Voluntary v. Involuntary Act – Intent = Forfeiture; No intent = No forfeiture. UPC

§9-803

2. Disclaimer – If person disclaims treat the disclaimant as though he predeceased the

Decedent.

a. UPC – doesn’t allow for manipulative disclaimers

b. Drye v. United States – Drye’s mother dies, owes 325K to IRS. Disclaims to

daughter. Held: Disclaimer is control, and because he could control the property.

Disclaimer doesn’t mean shit to the IRS.

c. Medicaid – Need based for the poor – So can you disclaim inheritance to get

Medicaid? Troy v. Hart – legally entitled to inheritance can’t disclaim

WILLS: CAPACITY AND CONTESTS

Mental Capacity – capability, not actual knowledge – allows for reasonable mistake. If

intelligence were the standard, most people wouldn’t be able to write a will.

a. Basic Test – Restatement – (18 or older) and must be capable of knowing and

understanding in a general way

i. The nature and extent of property

ii. The natural object of his or her bounty

iii. The diposition that he or she is making of that property

iv. Must be capable of relating these elements to one another and forming an

orderly desire regard the disposition of the property

b. Presumed Competent

c. ―Natural Objects of her Bounty‖ – not a precise term ~ these are people you to ought

to have in mind who get your stuff when you die.

d. Lucid Interval – defense to capacity claims – lucid on execution.

1. Burden of Proof

a. Majority Rule – Once Proponent shows prima facie evidence of due execution, the

burden is on the Contestant to show incapacity.

i. Wilson v. Lane – C challenges capacity of T, same as Washburn where $$ goes

to caretaker. GA test – capacity if she has sufficient intellect to enable her to

have decided and rationale desire as to the disposition of her property. Court

sees evidence as showing eccentricity but not incapacity.

b. Minority Rule – Proponent shows due execution, then Contestant must bring forth

some evidence to show lack of capacity. Burden shifts to the Proponent to show

capacity

i. In re Estate of Washburn – (NH) niece challenging will, T has 3 wills, most

recently leaving estate to caretaker. Proponent (Caretaker) could not meet

burden – evidence: ALZ, 2nd

/3rd

wills were 3 weeks apart and totally different.

Ws say niece should get house.

2. Capacity Threshold – Low standard. Marriage has a lower standard. Contracting has higher

standard.

Insane Delusion

1. To prevail in an insane delusion contest, in most jurisdictions, the contestant must show that

(1) the testator labored under an insane delusion, and (2) the will or some part thereof was a

product of the insane delusion (causation)

2. Majority view – A persistent belief in that which has no existence in fact, and which is

adhered to against all evidence.

3. Majority Test – Even if there’s a factual basis for it, if it so minimal, that no rational person

would reach the same conclusion based on that minimal evidence insane delusion.

4. Causation – ―materially affect the will‖ vs. ―might‖ cause

a. Breeden v. Stone – druggie hit and runs someone, knew police were on to him,

barricaded and went on a binge – wrote holographic will before suicide, left it all to

dealer. Held: Will valid, insane delusion didn’t materially affect the disposition of

the will.

b. Other jurisdictions – Causes is easier to show – if it ―might‖ have an affect on

disposition, it’s enough.

5. Partially Affected Will – the part affected is thrown out.

UNDUE INFLUENCE

1. Introduction – may occur with or without confidential relationship Proof is mostly inferential

and circumstantial. Influence can be from beneficiary or 3rd

party imputed to the beneficiary.

Parts of will made under influence may be stricken – same goes for intervivos transfers.

2. Undue Influence – mental or psychological influence that overcomes the testator’s free will

to where the document that is executed doesn’t reflect T’s true testamentary object/desire.

Influencer substitutes his/her own will.

a. Factors

i. Inference of UI (distinguished from presumption)

ii. Susceptibility is required in most JDs

Restatement Property Donative Transfers §8.3

b. Donative Transfers are invalid to the extent that it was produced by undue influence

c. UI – Wrongdoer exerted such influence over the donor that it overcame the donor’s

free will and cause the donor to make a transfer he might not have.

d. Commentary – age, inexperience, dependence, weakness. Wrongdoer doesn’t have to

present during execution. Circumstantial evidence is sufficient to raise an inference

of UI if contestant proves that

i. donor was susceptible to UI

ii. wrongdoer had an opportunity to exert UI

iii. wrongdoer had disposition to exert UI

iv. (Cause) there was a result that appeared to be the effect of UI.

3. Presumptions and Burden Shifting

a. Burden of Proof –

i. Majority – Contestant of will has burden of proving undue influence. Once

propronent shows due execution, contestant has burden to show UI

ii. Must generally show facts that give rise to the presumption - confidentiality +

something else (suspicious circumstances).

b. Presumption of Undue Influence – [PA] (Estate of Lakatosh)– to trigger burden

shifting presumption – contestant must prove by clear and convincing evidence that

there’s (1) Confidential Relationship (2) Person enjoying relationship received bulk

of the estate (3) D’s intellect was weakened.

i. If Presumption not allowed, then you had to prove with direct evidence

(impossible)

c. Confidential Relationship – Fiduciary, reliant, dominant-subservient

i. Fiduciary – atty-client, etc.

ii. Reliant – Question of fact – contestant must prove that there was a relationship

based on special confidence and trust. ~ Donor was accustomed to relying on

judgment advice of wrongdoer [Lakatosh – advisor, counselor, confidant]

iii. Dominant-subservient – caregiver, adult child of Testator; Kaufman

d. Suspicious Circumstances – Maj. Requires this; some JD’s just require that the

influencer procured the will.

i. Restatement list of Suspicious Circumstances (non-exhaustive)

1. Weakened/Susceptible

2. Level of wrongdoer’s involvement

3. Whether independent advice was received

4. How will was prepared - Secrecy or haste

5. Change in Donor’s attitude

6. Discrepancy in old and new will

7. Continuity of purpose running through former wills indicating a

settled intent in disposition of property

8. Would a reasonable person see the disposition of property as unjust

ii. Lakatosh – Bulk of estate going to confidant + T’s weakened intellect

iii. Moses – Bulk of estate + disfigured old spinster alcoholic

e. Rebutting the presumption of undue influence

i. Evidentiary Standard

1. IA – requires grantee to prove by clear and convincing evidence

that the grantee acted in good faith, grantor acted VIK..

2. CA – for care custodians auto-invalidity

ii. Independent Advice – Moses lawyer just acting as a scrivener, didn’t inquire as

to why she was changing her will not advice. Dissent says lawyer did

everything required.

iii. Much is dependent on the Factfinder’s bias –

1. E.g. – In re Kaufman’s Will – same sex relationship, acted as

couple. T made wills increasing gift, etc. Two jury trials –

―pliable and easily taken advantage of,‖ finds dominant-

subservient relationship.

4. No Contest Clauses – beneficiary who contests the will gets nothing (or token amount)

a. Discourages will contests by giving prospective contestant the choice of taking either

the certain (smaller amount) vs. larger amount by trying to invalidate.

i. Conflicting Policies –

1. Discourages Meritless litigation, family fights, defamation of

testator’s reputation.

2. INHIBITS possible meritorious claims on lack of capacity and UI.

ii. Majority – enforces – unless Probable Cause for contest.

1. UPC §2-517, §3-905 recognizes PC.

iii. Some JDs – don’t enforce (IA, FL)

iv. Other JDs – enforce, but limit it to claims of forgery or subsequent revocation

by later will or codicil, or if provision is benefiting the drafter of the will

1. Rationale – general PC Rule encourages litigation and shifts the

balance unduly in favor of contestants.

5. Bequests to Attorneys – Presumption of UI – Rebutted by Clear and Convincing Evidence.

a. NY – Attorney must submit a facts and circumstances affidavit of the gift – if judge

not satisfied hearing on UI

b. CA – Statute invalidating transfer (like caregiver) – unless related by blood or

marriage, except if there’s an independent lawyer who attaches a certificate of

independent review.

c. OH – relative – yes; non-relative – you can’t get the gift.

d. Many Jurisdictions – presumption of undue influence when drafter gets gift

i. Rebuttable by clear and convincing evidence

FRAUD

1. Two Types

a. Fraud in the inducement – T knows she is making the will, knows the terms, but

induced to make the will fraudulently

b. Fraud in the enactment – T is ready to sign, but thinks something it’s not – substituted

will or wrongdoer tells T that it’s a document that needs to be signed, not her will.

2. Elements – Fraud requires misrepresentation

a. Knowingly made;

b. Material Misrepresentation

c. Intent to deceive

d. Actually deceives

e. Causation – that the testamentary action was taken (execution, revocation, provision)

f. Damages must exist.

3. Puckett v. Krida – caretakers preyed upon T, feared going to nursing home. Lied to her

about her sister (wasting money, etc). Exerted control on her, deluding her. Nurses say

there’s no proof, but sister kept good $ records. Court held there was fraud – Nurses had

limited info to T and b/c they concealed their acts (intent).

DURESS

1. Undue Influence that becomes overly coercive.

2. Elements

a. Wrongdoer threatens to perform or did perform

b. A wrongful act

c. Coerced the donor into making a donative transfer

d. Causation - Testator would not have made this transfer

INTENTIONAL INTERFERENCE WITH AN EXPECTANCY

1. Intentional interference with an expectancy is not a method of will contest- it is a tort action.

It is a separate proceeding. If the plaintiff wins, he does not recover from the estate, but from

the wrongdoer (although he may be indirectly compensated from the estate.

In many jurisdictions, there is a relatively short period of time in which you can file a will

contest. Since this is a separate claim, that statute of limitations would not apply to this tort.

Punitive damages may be allowed for this tort claim, which are not allowed for a will. Also,

this would not likely violate a no-contest clause, because it is not contesting the will

(although you would have to check the no-contest clause to see if it specifically included

this.)

2. Not all JDs recognize this tort (it is a newer tort.)

3. Shilling v. Herrera - This case actually had two layers: undue influence, then the caretaker’s

conduct to keep him from finding out about the probate. T had 2 wills. First will – estate

brother. Second will – estate to Herrera (caretaker). Caretaker didn’t inform Brother of will

change. FL would have required notice of change to heirs, caretaker was executor and didn’t

inform

4. Elements:

a. Must be an expectancy

b. Intentional Interference w/ Tortious Conduct

c. Causation

d. Damages

WILLS EXECUTION

1. Formalities – (1) In writing; (2) Signed by the Testator; (3) Attested by witnesses

a. Applies to Wills, Codicils, Revocation, Republication (by Codicil)

b. Certain JDs require subscription (signed at the bottom).

2. Purpose of Formalities

a. Evidentiary Function – Reliability in the proof that is offered.

b. Channeling Function – Easier to determine a person’s wishes at death if those wishes

are recorded in a standardize form. Everyone knows how to do it.

c. Protective Function – protects T from fraud, duress, etc.

d. Cautionary Function – Lets T know that this is serious.

3. Exceptions –

a. Holographic

b. Nuncapative (Oral)

c. Notarized (UPC)

d. Dispensing Power / Harmless Error

e. Substantial Compliance

4. Attested Wills

a. Traditional Rule – Strict Compliance

i. In re Groffman – signature must be acknowledge – witness must see signature.

ii. Stevens v. Casdorph – no probate because two witnesses not present upon

signing

Presence Requirements UPC WV’s Ohio

T signs or acknowledges in presence of Ws Yes Yes Yes

W sign in T’s presence No Yes Yes

W must be in each others presence when T signs No Yes No

W must be in each others presence when Ws signs No Yes No

Proxy must be in T’s presence when the proxy signs Yes Yes Yes

b. Line of Sight Test – Must be able to see – T doesn’t have to see signature, just see W

(Some JDs)

c. Conscious Presence Test – not just sight, but hearing or general consciousness of

events – T comprehends that the witness is signing

d. UPC §2-502(a) – adopts conscious presence test, does away with witness presence

requirement

5. Signature – evidences finality; serves evidentiary purpose

a. Intent – a mark put on paper to validate that it’s your will is valid

b. Full name generally satisfies.

c. Dependent on statute

d. Placement – most JDs don’t have requirement where it is (nor the UPC)

i. Subscription or Addition after signature – some state require that T sign will at

foot or end.

ii. Ohio – signed at end; invalid unless – codicil or administrative provision (not

dispositive provision)

e. Order of signing – generally T signs first

i. Restatement & Ohio – valid as long as it’s a continuous transaction

f. Delayed Attestation – Witnessed but doesn’t immediately sign

i. UPC – ―reasonable time‖

ii. NY – 30 days

iii. CA – Before death + harmless error rule

6. In writing – Paper – valid [reasonably permanent record] ; Electronic – invalid; Video –

ambiguities and inconsistencies abound when T starts talking about disposition of assets

a. Some states allow as evidence of Due Execution, but not as will

b. UPC is Silent.

7. Witness Requirement – Purging Statutes – purges excess gift under will vs. intestacy

witnesses ought to be disinterested – not receiving T gift. Not an issue of will’s validity, but

an issue of who takes.

a. NY - Estate of Morea – if a witness would receive less under will than under

intestacy, it’s likely that that Witness isn’t an interested witness.

b. MA – regardless of share, interested witness gets nothing

c. CA – rebuttable presumption of fraud, UI.

d. UPC & Minority – interested witness doesn’t forfeit his bequest even if it’s greater

than which he would have received under a prior will or by intestacy. Rationale –

innocently performed.

Recommended Method of Executing a Will

1. Society is increasingly mobile – best way to execute is by complying with the strictest

formalities

2. Recommended –

a. Fasten all pages together, specify pages. Lawyer confirms that T understands/read

will. Lawyer + 2-3 Witnesses + Notary.

b. Lawyer asks (1) your will? (2) read/understand? (3) does it dispose of your property

according to your wishes?

c. L tells T to request sigs; Ws should watch; initial each page, 1 W reads the attestation

clause aloud. Self proving affidavit at the end. Lawyer memorializes with memo.

3. Safeguarding the Will –

a. Concerns with clients taking original – lost, changed, heir could destroy

b. Common for lawyers to keep original – cons – changes require you to go to lawyer

EXCEPTIONS TO STATUTORY REQUIREMENTS: CURING DEFECTS IN THE

EXECUTION OF ATTESTED WILLS

1. In re Pavlinko’s Estate – H&W – mistakenly signed each others’ Wills. Court refuses to

probate – example of strict compliance

2. Ad Hoc Exceptions

a. Narrowly Tailored exception to formalities - In re Snide – opposite result –

dispositive provisions were identical, and reciprocal – only thing that could explain

variance was by the mistakes – narrow exceptions with easily established proof.

b. Constructive Trusts –

i. Pope v. Garrett – Intentional wrongdoers benefited, but even for the innocent

beneficiaries, court imposed a constructive trust

ii. Estate of Tolin – upon advice from friend, T tears up photocopy of will.

Original turns up. Destruction of photocopy insufficient to revoke will –

however – court imposes a constructive trust upon the beneficiaries of the will.

3. Substantial Compliance– If will is defectively executed, and if the defective execution still

fulfills the purposes of the formalities, then it’s deemed valid.

a. Proving Due Execution With Attestation Clauses & Affidavits -

i. Attestation Clauses – facilitates probate by provided prima facie evidence &

permits probate of a will when a witness forgets the circumstances [rebuttable]

1. Expresses Present Intent to Act as Witness

ii. Self Proving Affidavit – Conclusive Proof (under many states & UPC) –

cannot challenge this. (Ohio & Minority do not recognize this). Swears the

will has been signed.

1. One Step – W’s sign only once, affidavit language in attestation

clause and notarized.

2. Two Step – Appends separate instrument at the end of a will. W’s

must sign both Will and Affidavit.

b. Substantial Compliance Doctrine - Clear and convincing evidence of T’s intent

should be produced by proponent to establish substantial compliance with statutory

requirements .

i. Newman says it doesn’t work for signatures, but DP can.

ii. In re Will of Ranney – 2 W’s sign, notarize, but didn’t sign as attest. Separate

sworn statement – but not refusing to probate b/c the witnesses signed the

affidavit.

4. Harmless Error (Dispensing Power Doctrine) – Court may excuse noncompliance with

formalities if there is clear and convincing evidence that T intended the document to be his

will. UPC and Minority of Jurisdictions.

UPC §2-503 – document or writing is treated as if it had been executed in compliance with that

section if the proponent of the document or writing establishes by clear and convincing

evidence that the decedent intended the document to constitute:

1. Decedent’s Will

2. Partial or Complete Revocation of the Will

3. A Codicil

4. Partial or Complete revival of her formerly revoked will or formerly revoked portion of will

a. Refers only to the document being a will. Signature isn’t strictly required.

b. Purpose – cure defects in formalities of will

c. Focus is on intent

d. In re Estate of Hall – T makes a will, marries, revises new will with new wife (joint).

New will is marked up draft, ask lawyer if it’s good as is, signs—notarizes. He then

tears up the old will – Held – if two W’s don’t properly witness, in some

circumstances can be treated as proper execution, just gotta prove it.

5. Notarized Wills

a. UPC §2-502(a)(3)(B) – A will is valid if it’s signed by two witnesses OR by a

notary. Either acknowledged by the testator before a notary public or other individual

authorized by law to take acknowledgements.

b. Ferrer – T has no witnesses, just notarized – NJ allows substantial compliance, but

actually having a witness is fundamental to the req’mt of formality.

6. Holographic Wills - Wills without attestation. Must be handwritten and signed..

a. Majority – doesn’t recognize (Ohio).

b. Signature – most jurisdictions – anywhere on the document. However, if not signed

at the end doubt as to intent was to be signature.

c. Handwriting Requirement – justified by evidentiary role – more complete evidence

for inspection by handwriting experts. Admission into probate depends on how much

of the instrument is written by T’s hand.

i. First Generation Statutes – entirely hand written, signed dated

ii. Second Gen. Statutes – ―material provisions‖ must be written by hand

iii. Third Gen – material provisions + extrinsic evidence (UPC)

d. Materiality – dispositive provisions are material.

i. Preprinted / Boilerplate Wills – split in jurisdictions

1. Look to preprinted portion – person who handwrote wishes on preprinted

Will valid, intent clear.

2. Other JDs / UPC – ignore all preprinted words, read only the handwritten

portions.

e. Estate of Gonzalez – boilerplate will. 2 W’s saw completed form and blank form. T

signs completed form, Ws sign blank form. Not signed by W = Holographic. Held –

handwritten provisions draw testamentary context.

REVOCATION OF WILLS

Ability to revoke a will is fundamental during T’s lifetime. Elements: (1) Act (2) Intent to

Revoke; (3) Performed by the Testator. If by proxy, that person must be in the conscious

presence of the testator and must act with the Testator’s direction.

1. Ways to Revoke – all states permit by one of two ways.

a. Destruction

b. By subsequent will or codicil (following will formalities – exceptions to formalities

apply)

c. UPC §2-507 - (a) a will or any part is revoked: (1) by subsequent writing that

revokes all or part expressly or by inconsistency; or (2) performing revocatory act,

if act performed with intent and for the purpose of revoking the will or part; or if

another individual performed act for them in their conscious presence and by

direction—―act‖ includes burning, tearing, cancelling, obliterating, or destroying the

will or any part of it…whether or not touched any words of the will.

2. Revocation by subsequent will or codicil - Inconsistency

a. Codicil – Presumption is that part the codicil replaces is void.

i. if codicil revokes, and is destroyed, it has no effect on the validity of the will

b.