Wills Flashcards
Might remote execution and attestation of a will satisfy statutory presence requirements during a pandemic?
Yes. Remote execution and attestation of a will might satisfy statutory presence requirements during a pandemic. New York law requires the signature of a testator to be affixed to the will in the presence of the attesting witnesses. However, if the requisite formalities are observed, there is no requirement that the execution and attestation procedure must be followed in the precise order set forth in the law. Furthermore, a state executive order issued in April 2020 specifically provides for remote execution of wills, reflecting the heightened need for physical distancing during the COVID-19 pandemic.
Is a will that accurately represents the testator’s wishes but fails to comply with statutory requirements for proper execution enforceable?
(under strict compliance)
No. A will that fails to comply with the statutory requirements for proper execution may not be enforced. The English Wills Act of 1837 (Act) requires that a will be in writing and signed by the testator either in the presence of both witnesses, or signed outside the presence of the witnesses and then acknowledged to both witnesses while they are simultaneously in the presence of each other and the testator.
Does evidence of a testator’s intent to sign a will override an incomplete signature? (under strict compliance)
No. Evidence of a testator’s intent to sign a will does not override an incomplete signature. Florida law requires a testator to sign the will at the end of the document. Although the testator’s intent is the primary consideration in construing the will, testamentary intent contained in a will can only be effectuated if the will meets the statutorily required formalities, including the signature requirement.
self-proving affidavit
affidavit accompanying will and signed by testator and witnesses, certifies that the will has been executed according to statutory requirements
May a will be enforced that is validly executed in all respects but the signature of the testator as required by the Wills Act of 1947, or be revised to make it compliant?
No. Even though a will has been validly executed in all other respects and there is no question of fraud, the will must comply with the requirement of the Wills Act of 1947 (Wills Act) that it bear the signature of the testator. Nor is the court permitted to revise the will to bring it into compliance with the Wills Act. Allowing courts to revise a will in the interests of equity to remedy a mistake that violates the Wills Act, or to allow exceptions to the requirements of the Wills Act would undermine the enforceability of the Wills Act and thereby limit its operation in preventing fraud.
If the testators of mutual wills that are simultaneously executed with statutory formality and contain identical reciprocal testamentary schemes, mistakenly sign each other’s will, may the court read the wills together in order admit the wills in probate?
Yes. If the mutual wills are simultaneously executed with statutory formality and contain identical reciprocal testamentary schemes, the fact that the testators signed one another’s wills does not bar probate. Instead, the wills may be read together in order to enforce the testators’ intended testamentary scheme.
dispensing power doctrine (harmless error) [UPC § 2-503]
Although a document or writing added upon a document was not executed in compliance with Section 2-502, the 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 or writing to constitute:
(1) the decedent’s will,
(2) a partial or complete revocation of the will,
(3) an addition to or an alteration of the will, or
(4) a partial or complete revival of the decedent’s formerly revoked will or of a formerly revoked portion of the will.
Can an electronic document be a valid will?
Yes. An electronic document can be a valid will. Michigan law provides that any document or writing can constitute a valid will if the party that submits the document for probate can show by clear and convincing evidence that the decedent intended the document to serve as a will. Extrinsic evidence may be used to establish testamentary intent.
Can a will that the decedent did not review and give final assent to be admitted to probate?
No. A draft will cannot be admitted to probate absent clear and convincing evidence that the decedent reviewed the draft and gave final assent to it. Otherwise, the court could only speculate whether the draft is an accurate depiction of the decedent’s last wishes.
Is an informal letter containing evidence of the decedent’s intent to make a posthumous gift as well as other language not related to the decedent’s testamentary intent, enforceable as a will?
Yes. To the extent that a document that would not otherwise be testamentary in nature contains evidence of the decedent’s intent to make a posthumous gift, that document may be enforced as a will.
holographic will
will handwritten by testator
establishing testamentary intent under UPC
testamentary intent may be established from either the handwritten words, the portions of the document that are not in the testator’s handwriting, or other extrinsic evidence
validity of preprinted portions of holographic will (under UPC)
holographic will may be valid though immaterial parts such as date or introductory wording are preprinted
Is a letter expressing the decedent’s testamentary intent to make a specific bequest enforceable as a holographic codicil to the decedent’s formal will?
Yes. If the facts adequately demonstrate that the decedent intended the letter to effect a transfer of specific property, but not all of his property, upon his death, the letter is testamentary and may be enforced as a holographic codicil to the decedent’s will. Although testamentary in character, the letter does not replace the will because it does not convey all of the decedent’s property.
Accordingly, the decedent’s formal will remains in effect to the extent it is not amended by the holographic codicil. Whether a letter contains the requisite testamentary intent to be treated as a holographic codicil is a question of fact and may not be reversed unless clearly erroneous and not supported by substantial evidence.
extrinsic evidence
evidence outside “four corners” of will — such as circumstances under which provision was written
May a written revocation on the back of a will be an effective revocation of the will?
No. If the written revocation fails to obliterate or deface the text of the will, or otherwise comply with statutory requirements, the attempted revocation will not be effective. The statute governing revocation of wills for this state requires that a will be revoked by a subsequent will, codicil or another writing that declares the testator’s intention to revoke and is “executed in the manner in which a will is required to be executed.”