Wills, Trusts, and Estates
A will is a document in which a decedent laid out how to distribute his property.
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.
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.
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.
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.
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.
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.