Wills, Trusts, and Estates
A will is a document in which a decedent laid out how to distribute his property.
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.
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.
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.
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.
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.
In a slight majority of states, holographic wills are permitted. (Mainly they're just not allowed in the Midwest.)
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.
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.
If a will cannot be found and it was last known to be in the defendant's possession, it is presumed to be destroyed.
- Apparently this has supposedly changed.
Under UPC § 2-507(a)(2), a writing anywhere on the document can revoke it.
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.
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
- 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.
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.
The UPC also revokes as to all of the former spouse's relatives. Virginia does not.
UPC § 2-804 is not the majority rule.
There has to be sufficient evidence to show that the decedent intended the papers to be part of his will.
- The external writing must be in existence at the time of the publication of the will.
- Republication by codicil can allow one to incorporate a newer memo.
- The will must manifest an intent to incorporate the writing.
- The will must describe the writing sufficiently to permit its identification.
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.
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.
A will must be made voluntarily.
[T]he testator . . . must be capable of knowing and understanding in a general way:
- the nature and extent of his or her property,
- the natural objects of his or her bounty, and
- the disposition that he or she is making of that property, and must also be capable of
- relating these elements to one another and forming an orderly desire regarding the disposition of the property.
He does not have to actually know these things, only be capable of knowing them.
An insane delusion is a false conception of reality.
Someone can be mostly crazy, but as long as his will is made in a moment of lucidity, it will be valid.
- The donor was susceptible to undue influence
- The alleged wrongdoer had an opportunity to exert undue influence R3P § 8.3
- Although the burden may be given to the proponent of the will if he was a fiduciary of the decedent.
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.
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.
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.
Ambiguities can be either patent or latent.
External evidence is admissible to resolve patent ambiguities under modern law, but not under common law.
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.
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.
Despite still following this rule, modern courts often try to construe things as ambiguities to allow them to fix mistakes.
- Many courts also give dividends along with bequeathed stocks.
If members of the class die before the testator, that portion of the devise is divided among the remaining members.
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.
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:
- A gift lapses.
- Does the antilapse statute apply?
- If so, distribute it to the devisee's descendants instead.
- Else, is the gift a class gift?
- If so, reallocate it among the other class members.
- Else, is the gift specific or general? (i.e., not residual)
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.
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.
- However, generic "words of survivorship" are not enough of an indication of contrary intent to prevent application of antilapse statutes. UPC § 2-603.
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."
- Virginia does not explicity disregard such words. It leaves it ambiguous.
Dean Todd recommends reading all 7,000 words of UPC § 2-603.
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.
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.
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.
- Virginia follows this rule. VA Code § 64.2-531.
Devises are reduced in the following order:
Devises of each type are reduced pro rata. The next type is not reduced until the previous type is out of money.