Wills, Trusts, and Estates

Will


A will is a document in which a decedent laid out how to distribute his property.

Authenticity
Formality

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 Will

Attested wills are wills authenticated by having witnesses sign it.

There are three core formalities for making an attested will:

  1. Writing
    • Nuncupative 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.

  2. Signature

    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

    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.

  3. Attestation

    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.

    1. 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.
    2. 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.
    Presence

    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.

    Conscious Presence

    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 Clause

    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.

    Purging Statute

    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.

    Execution Ceremony

    See pages 159–160 of the book.

    1. Put the full "Page X of N" at the bottom of the pages.
    2. Make sure the testator understands the will and get that in writing with just him.
    3. Then bring in the witnesses and notary and don't let them leave until done.
    4. Ask the testator if it's his will which he understands and desires in the presence of the notary.
    5. Ask the testator to request the witnesses to sign after him.
    6. Have the testator sign with the witnesses standing around him.
    7. Have the witnesses read the attestation clause.
    8. Have the witness sign.
    9. Have the testator and witnesses sign a self-proving affidavit swearing that the will was duly executed, which the notary then signs.
    10. Review the documents to make sure signed right.
    11. Write a memo saying you followed these protocols.
    12. Give the testator the will.

Different states have different and additional requirements however.

Notarized Will

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.

Holographic Will

A holographic will is a will handwritten and signed by the testator.

In a slight majority of states, holographic wills are permitted. (Mainly just not in the Midwest, plus some other areas you can see on the map (if it exists yet).)

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.

Strict Compliance

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)

Substantial Compliance

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.

Harmless Error

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.

Express 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.

Implied Revocation

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:

  1. Valid prior disposition,
  2. Purported revocation, and
  3. Either
    1. The revocation was accompanied by an alternate disposition stated in the revocation, which is invalid, or
    2. The revocation recites a mistake of fact (or law) (that we are assuming has a causal relationship to the revocation), and
  4. 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
  1. 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.
  2. 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.
  3. 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.
  1. A will wholly revoked by a new will which is then itself physically revoked is not revived. It remains revoked.
  2. A will partially revoked by a new will which is then itself physically revoked is revived.
  3. 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.
Divorce

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.

UPC § 2-804 would, but this is not commonly adopted.

Marriage

Marriage used to revoke any previously-made wills, but most states today allow such wills to remain valid, although the pretermitted spouse may take an intestate share of the deceased's property under UPC § 2-301.

Integration

Under the doctrine of integration, all papers present at the time of execution and intended to part of the will are treated as part of the will.

There has to be sufficient evidence to show that the decedent intended the papers to be part of his will.

Republication by Codicil

Whenever a codicil is published, it is treated as if the will itself is republished. R3P § 3.4

Incorporation by Reference

An external writing may be incorporated as part of the will if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. UCC § 2-510.

  1. The external writing must be in existence at the time of the publication of the will.
  2. The will must manifest an intent to incorporate the writing.
  3. The will must describe the writing sufficiently to permit its identification.
Tangible Personal Property Memo

UPC § 2-513 now allows a testator to dispose of tangible personal property by a separate writing by a separate writing, even if prepared after the execution of the will.

Only tangible personal property not otherwise disposed of by the will can be disposed of by such a memo.

  • However, one can include a clause in the will saying the memo takes precedence, thereby making the will's disposition conditional upon the memo not disposing of it, and permitting the memo's disposition.
Acts of Independent Significance

If a will identifies beneficiaries or property by a reference to something that has significance outside the will, it may be thereby modified.

E.g., you may bequeath "my house" or "my car" to someone and it will continue to your new house or car because you did not get a new house or car just to change your will.

Contracts Relating to Wills
Voluntary

A will must be made voluntarily.

Capacity

[T]he testator . . . must be capable of knowing and understanding in a general way:

  1. the nature and extent of his or her property,
  2. the natural objects of his or her bounty, and
  3. the disposition that he or she is making of that property, and must also be capable of
  4. relating these elements to one another and forming an orderly desire regarding the disposition of the property.
Copyright, The American Law Institute

He does not have to actually know these things, only be capable of knowing them.

Making a lifetime gift requires more capacity than making a will, and making a will requires more capacity than getting married.

Insane Delusion

An insane delusion is a false conception of reality.

A person who drafts his will based on an insane delusion may have sufficient capacity to understand how to dispose of his property but will still be barred from doing.

Someone can be mostly crazy, but as long as his will is made in a moment of lucidity, it will be valid.

Undue Influence

Undue influence is when someone exerts such influence so as to overbear the donor's free will and make him make a transfer he otherwise would not have made.

Undue influence prevents a will from being voluntary when:

  1. The donor was susceptible to undue influence
  2. The alleged wrongdoer had an opportunity to exert undue influence R3P § 8.3

The burden to show undue influence is on the person who contests the will.

  • Although the burden may be given to the proponent of the will if he was a fiduciary of the decedent.
Duress

A donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into making a donative transfer that the donor would not otherwise have made.

Copyright, The American Law Institute
Fraud

A donative transfer is procured by fraud if the wrongdoer knowingly or recklessly made a false representation to the donor about a material fact that was intended to and did lead the donor ot make a donative transfer that the donor would not otherwise have made.

Copyright, The American Law Institute

Fraud can either be in the execution of the will, where misrepresents the character or contents of the will, or in the inducement of the will, where one's misrepresentation causes the testator to make his will in the wrongdoer's favor.

An involuntary transfer that fails will be included in the residue.

Meaning

In interpreting wills, most states follow the plain meaning and no reformation rules.

Plain Meaning

Under the plain meaning rule, no extrinsic evidence is allowed to disturb the plain meaning of wills.

Extrinsic evidence can only be admitted to resolve ambiguities in the will. (Not mistakes)

Ambiguity

Ambiguities can be either patent or latent.

Patent Ambiguity

A patent ambiguity is one evident from the face. E.g., if two places have different dollar amounts, that is a patent ambiguity.

External evidence is admissible to resolve patent ambiguities under modern law, but not under common law.

Latent Ambiguity

A latent ambiguity is one that only arises when applied to the facts. E.g., it says to give it to someone but there are two people by that name.

Latent ambiguities can be between exact fits or partial fits.

Equivocation

Equivocation is a latent ambiguity where two or more people exactly fit the description in the will.

Personal Usage

Personal usage is an exception to the plain meaning rule. It allows extrinsic evidence to show the true meaning of terms the testator habitually used in an idiosyncratic manner.

E.g., if you have a friend named Jeanilee, but you exclusively and oddly call her "Vicky" in your folly, extrinsic evidence would be admitted to resolve who Vicky is.

Extrinsic evidence will be admitted to resolve latent ambiguities under both common law and modern law.

Latent ambiguities can also be partial fits. If no one person fits the description, but multiple partially fit it, extrinsic evidence will also be allowed to resolve the ambiguity.

No Reformation

Under the no reformation rule, courts cannot correct mistakes in wills. They will follow what the will says even if it is not what the testator wanted.

Despite still following this rule, modern courts often try to construe things as ambiguities to allow them to fix mistakes.

Then some modern courts, like California, will not follow the no reformation rule, and will just do whatever they think is the best if there is clear and convincing evidence of a mistake.

If devised stock is split between execution and death, most courts give the split stocks, not just the number of shares in the will.

  • Many courts also give dividends along with bequeathed stocks.

A will can be conditional, but explaining a reason for making a will does not make it conditional under the modern majority rule.

Devise

A devise is leaving something to someone via will.

Specific Devise

A specific devise is a devise of a specific item of property. (e.g., my watch to my niece)

If the specific property cannot be given away, the devise is traditionally adeemed.

General Devise

A general devise is a devise that does not specify which property is supposed to be given to the devisee (usually because it's fungible). (e.g., $10,000 to David or 10 cows to Joel)

Demonstrative Devise

A demonstrative devise is a hybrid between general devises and specific devises. It states a general devise that should be paid from a specific source.

If such a source is inadequate, the devise is then paid out of the general, instead of being adeemed.

Residuary Devise

A residuary devise is when the residue of one's property is left to someone. (i.e., everything not otherwise devised)

If all residuary devises lapse, the heirs of the testator take the residuary devise by intestacy.

No-Residue-of-a-Residue Rule

If part of the residue lapses, that portion is inherited by the heirs by intestacy. It is not devised among the remaining devisees. (This does not mean class gifts however.)

(This is possibly the least intuitive rule in wills.)

Class Gift

A class gift is a testate gift to a group of described people.

Adoptees and nonmarital children count as children in class gifts if they would count as children for intestacy purposes. UPC § 2-705(b), VA Code § 64.2-101.

If members of the class die before the testator, that portion of the devise is divided among the remaining members.

Rule of Convenience

A class closes as soon as one member is entitled to possession. Even if another person [is born] and satisfies the requirements eventually, he can never take.

Lapse

A devise lapses if the if the devisee dies before the testator.

At common law, a devise is implied to be conditional upon the devisee's surviving the testator unless specified otherwise.

Know the chart on page 373, which details the process to go through when a gift lapses to find who to distribute it to:

Void

If a devisee is already dead at the time the will is executed or if the devisee is an ineligible taker (often because he is a cat or dog), the devise is void. This is much more uncommon in the digital age.

Void devises are treated the same as lapsed devises.

Antilapse

Nearly all states have antilapse statutes that substitute other beneficiaries for predeceased devisees under certain circumstances. This is because it is presumed that testators would prefer a substitute gift to the devisee's descendants rather than for it to pass by intestacy.

Antilapse statutes only apply if the devisee has a close enough relationship to the testator, as specified by state statute. The UPC's and Virginia's versions applies to grandparents and descendants thereof. UPC § 2-605; VA Code § 64.2-418.

Antilapse statutes can be avoided by specifying in the will what happens if the devisee does not survive the testator. If the will implies contrary intent (e.g., "to my living brothers, share and share alike"), the antilapse statute will also be avoided.

Words of Survivorship

Words of survivorship are generic, boilerplate phrases that claim to condition gifts upon people surviving the testator, such as "if he survives me" or "my surviving children."

UPC § 2-603(b)(3) disregards words of survivorship when looking for contrary intent for antilapse statutes despite them literally stating contrary intent.

  • Virginia does not explicity disregard such words. It leaves it ambiguous.

Dean Todd recommends reading all 7,000 words of UPC § 2-603.

Ademption

Ademption by extinction is a taking away or revocation of a devise that traditionally happens when a specific devise cannot be fulfilled.

Identity Theory

Under the traditional identity theory of ademption, specific devises are extinguished if their specifically devised item is not in the testator's estate.

The theory behind the identity theory is that if a testator did not want the ademption, he would have amended his will after losing the property.

Intent Theory

Under the newer intent theory of ademption, if a specifically devised is not in the testator's estate, the beneficiary is still entitled to a replacement or cash value of the item if he can show that this is what the testator would have wanted.

This can mean that you get a much more valuable piece of property. E.g., if someone drives a beautiful 2006 Chevy Malibu, devises it in his will, and then trades it in for a Ferrari, the devisee is entitled to the replacement Ferrari.

Satisfaction

Satisfaction is when one gives willed property to his devisee as a gift before dying. Traditionally, gifts between executing the will and death are presumed to be in satisfaction of the will.

I.e., if one wills $50,000 to his son, then gives his son $30,000 before dying, his son will only get $20,000 from the will.

Satisfaction only applies to general devises. If items of specific devises are given before death, the devise is adeemed by extinction, not satisfaction.

It is basically the testate equivalent of advancements.

Like with advancements, the UPC greatly limits satisfaction by requiring testators' intent to adeem by satisfaction to be shown in writing. UPC § 2-609.

Exoneration of Liens

Some states follow the common law exoneration of liens rule, which assumes that testators want to have mortgages on property paid out of their estates before giving the property.

States that don't follow it, just give the property with the mortgage thereon.

The default rule of the UPC is nonexoneration. UPC § 2-607.

Abatement

Abatement is a reduction of devises when a testator's estate is insufficient to fulfill his will.

Devises are reduced in the following order:

  1. Residuary devises
  2. General devises
  3. Specific devises and demonstrative devises

Devises of each type are reduced pro rata. The next type is not reduced until the previous type is out of money.

While a trust can do almost everything a will can do, a will is still needed to name guardians for children.