Decedents' Estates February 2003 Flashcards
(4 cards)
Summary
Although Testator’s will was not validly executed because it was signed in her name but outside of her presence, it was validly incorporated by reference into Testator’s duly executed codicil, which expressly referred to it by date. Thus, the will, as incorporated by referenceinto the codicil, is valid to pass title to Blackacre to Charity, the beneficiary under the will.
Because the bequest of the ring in the codicil to Nora adeemed by virtue of Testator’s gift of the ring to Betty, Nora is not entitled to the ring.
Testator’s October 1, 1998, will was not effectively executed because Lawyer, while signing it at Testator’s direction, did not sign it in her presence.
Will execution statutes commonly provide that another person may sign a testator’s will if it is done at the testator’s direction and in the testator’s conscious presence. See, e.g., Uniform Probate Code (UPC) § 2-502(2). A few statutes additionally require that persons who sign for the testator must also sign their own names and sometimes also give their addresses. See Restatement (Second) of Property: Donative Transfers, Statutory Note to § 33.1. Many wills statutes require one or both of the following additional requirements: (1) that the testator declare the instrument to be his or her will to the witnesses, or (2) that the testator ask the individuals selected as witnesses to witness his or her execution of the instrument.
In this case, Lawyer signed Testator’s name at her direction, but the question is whether he did so in her presence. The likely answer is that he did not. Courts have used two tests to determine presence: the majority “line-of-sight” test and the minority “conscious presence” test. Under the “conscious presence” test, the will execution is sufficient “if it was done in the testator’s conscious presence, i.e., within the range of the testator’s senses such as hearing.” See Unif. Prob. Code § 2-502 cmt.
Lawyer clearly did not satisfy the “line-of-sight” test because Testator did not see Lawyer signing the will on her behalf. Under the “line-of-sight” test, the testator should be capable of seeing the witnesses and the person who is signing the will on the testator’s behalf actually sign the will. In those cases where the testator must specifically ask the witnesses to act as such, the witnesses should be capable of hearing that request. Matter of Jefferson’s Will, 349 So. 2d 1032 (Miss. 1977). Even under the more liberal “conscious presence” test (which the UPC expressly adopts), it is very unlikely that the court will conclude that the presence requirement was satisfied. In the analogous situation where a testator acknowledges her signature to witnesses over the telephone, courts have held that this does not satisfy the “conscious presence” requirement. See In re Estate of McGurrin, 743 P.2d 994 (Idaho Ct. App. 1987). There is too much room for fraudulent or mistaken substitution of one document for another under these circumstances to permit the will to be admitted to probate.
The defect with the signature requirement is itself sufficient reason to conclude that the will was defectively executed. Additionally, since Testator did not sign the will, acknowledge her signature, acknowledge the will to the witnesses in their presence (under either test), or ask them to act as witnesses, there was defective execution with respect to the witnessing requirements of the will statutes in most states.
The Uniform Probate Code’s harmless error provision, UPC § 2-503, would not likely allow the October 1, 1998, writing to be admitted as a will. There are two defects here, signature and attestation, and the Comment to § 2-503 provides that the greater the departure from the required formalities of execution, the less likely that the provision will cure the defects. This is especially true with respect to defects in the signature requirement. See UPC § 2-503 cmt.
The validly executed codicil incorporated the October 1, 1998, will by reference, and therefore the October 1, 1998, will can be given legal effect even though it was defectively executed. Therefore, Charity is entitled to Blackacre.
The codicil is Testator’s only duly executed will. A properly executed codicil can incorporate by reference an earlier will that was defectively executed, as here. See Allen v. Mattock, 14 Eng. Rep. 757 (P.C. 1858); Jesse Dukeminier & Stanley Johanson, WILLS,TRUSTS,AND ESTATES 303 (6th ed. 2000). Therefore, if the jurisdiction recognizes the doctrine of incorporation by reference, the court should give effect to the October 1, 1998, will as an incorporated extrinsic writing.
The doctrine of incorporation by reference is recognized in most states. Either by statute (e.g., UPC § 2-510) or by judicial decision, several requirements must be met in order for a properly executed will to incorporate an extrinsic writing by reference. The usual requirements are: (1) the extrinsic writing must in fact have been in existence at the time the incorporating will was executed; (2) the incorporating will must refer to the extrinsic writing as having been in existence at the time of execution; (3) the incorporating will must refer to the extrinsic writing in such a way as to reasonably identify it; and (4) the incorporating will must manifest the testator’s intent to incorporate the extrinsic writing. See Wagner v. Clauson, 78 N.E.2d 203 (Ill. 1948). All four of the requirements were met here. The codicil’s reference to the existing October 1, 1998, will is sufficiently clear, as is the intention to incorporate the earlier writing. Therefore, Charity is entitled to Blackacre.
Note: If the jurisdiction does not recognize the incorporation doctrine, the probate court should not give any effect to the October 1, 1998, writing. Specifically, the doctrine of republication by codicil cannot be used to republish an earlier will that was defectively executed. The republication requirement can be used to give effect to an earlier will that was invalid for reasons other than defective execution. The October 1, 1998, will was invalid solely because it was defectively executed, so republication is not available here. If the will was not incorporated by reference, Blackacre would pass to Nora and Betty equally as Testator’s heirs.
The bequest of the diamond ring to Nora was adeemed by Testator’s gift of the ring to Betty. Therefore, Nora is not entitled to the ring and Betty keeps it.
The doctrine of ademption by extinction provides that if the subject matter of a specific bequest is not part of the estate at the testator’s death, the bequest is adeemed. The doctrine applies only to specific bequests. The bequest here was specific because the will referred to a specific asset. Under the traditional approach to ademption—the so-called “identity theory”—the testator’s intent as to ademption is irrelevant. All that matters is whether or not the specifically bequeathed asset is part of the estate at death. Accordingly, Testator’s gift of the ring to Betty caused the bequest to Nora to adeem.
Even under the Uniform Probate Code’s non-ademption provision, UPC § 2-606(a)(6), which adopts the so-called “intent theory” of ademption, the result would be the same. In the Comment to § 2-606, the drafters provide a hypothetical problem with facts similar to those of this case. The Comment states, “G’s deliberate act of giving away the specifically devised property is a fact and circumstance indicating that ademption of the devise was intended.” Therefore, § 2-606(a)(6) would yield the same result as the traditional ademption doctrine, particularly because the facts state that Testator gifted the ring to Betty in order to ensure that Nora did not take under the codicil
