Wills, Trusts, and Estates
To ensure the authenticity of wills, every state requires certain formalities for making or revoking a will. These enable a easy clear-cut way for courts to determine the authenticity of a will.
Making a Will
Attested wills are wills authenticated by having witnesses sign it.
There are three core formalities for making an attested will:
A nuncupative will is one given orally. They are generally not allowed, but some states allow them for people about to die from illness or for people in the military.
All states and UPC § 2-502(a) require the testator to sign the will for it to be valid.
Like in contracts, a signature is any mark made with the intent to be a signature.
It is often recommended to use a blue pen when signing, so you can easily tell the original from copies.
Subscription is the requirement of the UK's 1837 Wills Act that required the will to be signed at the end of the will. The entire will is invalid if there is anything written below the signature.
Unlike the common law, modern American law does not require subscription.
Attestation is the formal observation of the testator's signing by witnesses.
The UPC requires two witnesses to sign the will within a reasonable time after witnessing the signing or acknowledgment of the will.
Many states require all witnesses to be present when the testator sign his will and when they each sign it.
- A will wholly in the testator's handwriting is valid without further requirements, provided that the fact that a will is wholly in the testator's handwriting and signed by the testator is proved by at least two disinterested witnesses.
- A will not wholly in the testator's handwriting is not valid unless the signature of the testator is made, or the will is acknowledged by the testator, in the presence of at least two competent witnesses who are present at the same time and who subscribe the will in the presence of the testator. No form of attestation of the witnesses shall be necessary.
States have different definitions of the "presence" required for attestation.
Line of Sight
In England and some states, the line of sight test is used for presence. It requires the testator to have been able to see the witnesses sign the will if he looked. You have to be in line of sight. You can't be in a nearby room or something.
Some states use conscious presence, which requires the testator to comprehend that the witness is in the act of signing, whether through sight, hearing, or general consciousness of events.
Uniform Probate Code
UPC § 2-502(a)(3) does not require that the witnesses sign in the testator's presence at all. It does require them to see the testator's signing or acknowledgment of the will. If the testator has another sign on his behalf, the UPC requires conscious presence.
Attestation clauses recite that the will was executed in accordance with the applicable Wills Act. No state normally requires an attestation clause, but they give a rebuttable presumption of due execution, so you should always have one.
A slim majority of states have purging statutes, which purge benefits that witnesses to wills receive therefrom. Most of them only purge the benefits in excess of what the witness would have received in intestacy however.
If there are sufficient witnesses to a will without the interested witness, then that witness was supernumerary and may take his full devise.
See pages 159–160 of the book.
- Put the full "Page X of N" at the bottom of the pages.
- Make sure the testator understands the will and get that in writing with just him.
- Then bring in the witnesses and notary and don't let them leave until done.
- Ask the testator if it's his will which he understands and desires in the presence of the notary.
- Ask the testator to request the witnesses to sign after him.
- Have the testator sign with the witnesses standing around him.
- Have the witnesses read the attestation clause.
- Have the witness sign.
- Have the testator and witnesses sign a self-proving affidavit swearing that the will was duly executed, which the notary then signs.
- Review the documents to make sure signed right.
- Write a memo saying you followed these protocols.
- Give the testator the will.
Different states have different and additional requirements however.
UPC § 2-502(a)(3) says that a will is valid if it is signed by two witness or if it is notarized. However, notarized wills have only actually been adopted in Colorado and North Dakota.
A holographic will is a will handwritten and signed by the testator.
In a slight majority of states, holographic wills are permitted. (Mainly they're just not allowed in the Midwest.)
View Which States Allow Holographic Wills
Virginia was the first state in America to permit holographic wills and UPC § 2-502(b) allows them as well.
About one-third of states the states permitting holographic wills require that the whole will be handwritten, including Virginia. The remaining states only require that the "material provisions" be handwritten and therefor allow for, say, filling in a form will by hand. These states are split roughly 50/50 on whether to allow extrinsic evidence in the establishment of testamentary intent. UPC § 2-502(b) does allow extrinsic evidence.
Almost all states allow the testator to sign anywhere on the will.
Traditionally, wills must be executed in strict compliance with all the formal requirements of the applicable Wills Act. Even if the court believes the will to be legitimate and intended by the deceased, they will not admit the will. (E.g.: Stevens v. Casdorph)
South Australia and some American jurisdictions follow a substantial compliance approach to will validation. This approach admits technically invalid wills as valid if the noncomplying will expresses the decedent's intent and sufficiently approximates the required formalities so as to serve the purposes thereof.
UPC § 2–503 treats a document as if it had been executed in compliance with the formal requirements
if the proponent of the document established by clear and convincing evidence that that decedent intended the document to constitute his will or a modification thereof.
Evidence of dispositive intent is different from evidence that a piece of paper was intended to serve as a will.
VA Code § 64.2-404 follows the harmless error rule, but does not allow it to patch a missing signature except in the case of two people mistakenly signing each other's will.
Revoking a Will
Wills are ambulatory, meaning that they can be amended or revoked at any time.
A will can either be revoked by a subsequent writing or by physically destroying the will. Wills cannot be revoked orally.
A will can either be revoked by a subsequent writing by express revocation or by implied revocation.
An express revocation is a revocation by subsequent writing in which the testator specifically says they revoke the will.
Most well-draft wills will start with an express revocation:
I, Matthew Miner, a resident of Champaign, IL, make this my will and revoke all prior wills and codicils.
An implied revocation occurs when a subsequent will is executed which is inconsistent with a prior will.
UPC § 2-507 treats subsequent wills that make a complete disposition as presumptively revoking the prior will by inconsistency, but if only part of the estate is disposed of under the new will, then anything not included in it but that is in the prior will will be disposed of according to the old one.
Physical Act Revocation
A will can be revoked by physically destroying the will.
If a will cannot be found and it was last known to be in the defendant's possession, it is presumed to be destroyed.
Just because it cannot be found does not mean that will be found to be revoked though.
A will can also be physically revoked by writing on the old will. E.g., crossing it out, writing "void" on it, etc.
In Virginia, the writing on the will must touch the writing in the will to be a valid revocation.
- Apparently this has supposedly changed.
Under UPC § 2-507(a)(2), a writing anywhere on the document can revoke it.
If a will is revoked, a codicil thereto can still be effective if it meets all the requirements for a will on its own.
Partial Revocation by Physical Act
In most states and under UPC § 2-507, part of a will can be revoked by, like, crossing out part of it. This can only be used to remove people though. One cannot increase the amounts given to specific people.
Dependent Relative Revocation
If a testator revokes his will based upon a faulty assumption, the revocation is presumed to be ineffective. R3P § 4.3.
E.g, if one revokes his old will and tries to make a new will because he believed something to have changed about the beneficiaries or if he believes the new will to be legally valid or if he believes the new will to distribute the property differently than it does, then the new will will not be followed and the old will will be.
This is to follow the testator's intent and to avoid intestacy.
The DRR presumption arises when there is a:
- Valid prior disposition,
- Purported revocation, and
- The revocation was accompanied by an alternate disposition stated in the revocation, which is invalid, or
- The revocation recites a mistake of fact (or law) (that we are assuming has a causal relationship to the revocation), and
- We believe that the testator would not desire the revocation if he knew that the alternative disposition fails or about the mistake of fact.
Just revoking a will with an intention to make a new will and failing to do so does not make the revocation ineffective unless the decedent took actual steps to complete the plan to make a new will. R3P § 4.3, Comment c.
If a later will intended to replace an earlier will contains provisions from the first will that are now ineffective because of state law, the revocation of those provisions from the first will is ineffective. They will apply. R3P § 4.3, Comment e.
Reviving a Will
UPC § 2-509
UPC § 2-509
- If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under Section 2-507(a)(2), the previous will remains revoked unless it is revived. The previous will is revived if it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator intended the previous will to take effect as executed.
- If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act under Section 2-507(a)(2), a revoked part of the previous will is revived unless it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator did not intend the revoked part to take effect as executed.
- If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later will, the previous will remains revoked in whole or in part, unless it or its revoked part is revived. The previous will or its revoked part is revived to the extent it appears from the terms of the later will that the testator intended the previous will to take effect.
- A will wholly revoked by a new will which is then itself physically revoked is not revived. It remains revoked.
- A will partially revoked by a new will which is then itself physically revoked is revived.
- A will wholly or partially revoked by a new will which is then itself revoked by yet another will is not revived besides to the extent said by the third will.
UPC § 2-804 and nearly all states provide a presumption that a divorce revokes any provisions in a will giving to the former spouse. This includes Virginia. VA Code § 64.2-412.
The UPC also revokes as to all of the former spouse's relatives. Virginia does not.
UPC § 2-804 is not the majority rule.
Most states do not change life insurance beneficiaries on divorce. Divorce lawyers should be sure to get policies changed.
- Virginia does presumptively change life insurance on divorce. VA Code § 20-111.1.
UPC § 2-804 would, but this is not commonly adopted.