Chapter 5 Flashcards
To have testamentary capacity, the testator: (i) must understand she is making a will; (ii) must know the extent and character of her property; and (iii) must know the natural objects of her bounty, who are generally recognized as the testator’s close relatives
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Will formalities serve four functions: The evidentiary function. They assure that permanent reliable evidence of the testator’s intent exists. The channeling function. They assure that the testator’s intent is expressed in a way that is understood by those who need to interpret it. Formalism also assures that the document enters the legal system in a manner that courts (and personal representatives) can process routinely and without litigation. The ritual (cautionary) function. They assure that the testator’s intent to dispose of property is serious and that the testator understands this is a will. The formal requirements assure that the document is final and not a draft. The protective function. They assure that the testator is protected from her own lack of capacity. They assure that testator’s intent is not the product of undue influence, fraud, delusion or coercion. The formal requirements also assure that the document and signatures are not the products of forgery or perjury.2
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UPC §2-502. Formalities Required for a Valid Will.
(a) [Witnessed or Notarized Wills.] Except as otherwise provided in subsection (b) and in Sections 2-503, 2-506, and 2-513, a will must be:(1) in writing;(2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction; and(3) either:
(A) signed by at least two individuals, each of whom signed within a reasonable time after the individual witnessed either the signing of the will as described in paragraph (2) or the testator’s acknowledgment of that signature or acknowledgment of the will; or(B) acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments. . . .
(c) [Extrinsic Evidence.] Intent that a document constitute the testator’s will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator’s handwriting.
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UPC §2-502(a)(2), by its silence, does not require that the testator’s signature be at the end of the will
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he will must be “witnessed,” i.e., signed by two or three people other than the testator, in order to be valid. UPC §2-502(a)(3)(A).
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UPC §2-502(a)(3)(A) explicitly provides that the witnesses must sign within a reasonable time after having witnessed either the testator’s signing the will or the testator’s acknowledging his signature on the will. The witnesses can observe either one of these acts. The witnesses do not have to see the testator sign the will itself..
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UPC §2-502(a)(3)(B) allows acknowledgement by the testator before a notary public to substitute for witnessing by two other people.
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UPC §2-505. Who May Witness.
(a) An individual generally competent to be a witness may act as a witness to a will.(b) The signing of a will by an interested witness does not invalidate the will or any provision of it.
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The requirement in UPC §2-502(a)(3)(A) that two individuals “witness” the will means they must either observe the testator sign the will, or the testator must acknowledge to them that it is either his signature or his will.
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UPC §3-406. Formal Testacy Proceedings; Contested Cases.
In a contested case in which the proper execution of a will is at issue, the following rules apply:(1) If the will is self-proved pursuant to Section 2-504, the will satisfies the requirements for execution without the testimony of any attesting witness, upon filing the will and the acknowledgment and affidavits annexed or attached to it, unless there is evidence of fraud or forgery affecting the acknowledgment or affidavit.(2) If the will is notarized pursuant to Section 2-502(a)(3)(B), but not self-proved, there is a rebuttable presumption that the will satisfies the requirements for execution upon filing the will.(3) If the will is witnessed pursuant to Section 2-502(a)(3)(A), but not notarized or self-proved, the testimony of at least one of the attesting witnesses is required to establish proper execution if the witness is within this state, competent, and able to testify. Proper execution may be established by other evidence, including an affidavit of an attesting witness. An attestation clause that is signed by the attesting witnesses raises a rebuttable presumption that the events recited in the clause occurred.
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UPC §2-502(a)(3)(B) provides that a will can be valid if the testator acknowledges the will before a notary, even if there are not two witnesses to the will.
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UPC §2-502(b) provides that such an unwitnessed or unattested will is still valid “if the signature and the material portions of the document are in the testator’s handwriting.”
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First-generation statutes required that the will be entirely written, dated, and signed by the hand of the testator in order to be a valid holograph
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Second-generation statutes required that the signature and the material provisions be in the handwriting of the testator in order to be valid
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Finally, third-generation statutes, of which UPC §2-502(b) is an example, only require that the signature and the material portions of the document be in the handwriting of the testator in order to be a valid holograph.
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UPC §2-502(b). Holographic Wills.
A will that does not comply with subsection (a) is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.
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UPC §2-503. Harmless Error.
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 (i) the decedent’s will, (ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (iv) a partial or complete revival of his [or her] formerly revoked will or of a formerly revoked portion of the will.
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Under substantial compliance, a court considers the level of compliance with statutory formalities and determines whether compliance was “close enough” to make validating the will appropriate.
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UPC §2-506. Choice of Law as to Execution.
A written will is valid if executed in compliance with Section 2-502 or 2-503 or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national.
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UPC §2-515. Deposit of Will with Court in Testator’s Lifetime.
A will may be deposited by the testator or the testator’s agent with any court for safekeeping, under rules of the court. The will must be sealed and kept confidential. During the testator’s lifetime, a deposited will must be delivered only to the testator or to a person authorized in writing signed by the testator to receive the will. . . .
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When a client or former client dies, the lawyer who has retained the will for safekeeping has a duty to produce it within a reasonable time. The sanctions for failure to do so include (i) contempt of court and (ii) liability to any person who suffers damages due to the failure to produce the will.
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UPC §2-516. Duty of Custodian of Will; Liability.
After the death of a testator and on request of an interested person, a person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate and if none is known, to an appropriate court. A person who willfully fails to deliver a will is liable to any person aggrieved for any damages that may be sustained by the failure. A person who willfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court
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