slides 5 Flashcards
What Are the Formalities?
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Writing
Attestation (witnessing)
Signature (or subscription)
Legal Requirements
Capacity
Legal Capacity: Old enough (usually 18) or otherwise authorized by statute to execute a will
Mental Capacity: Must be of sound mind
T’s Testamentary Intent – i.e., intent that the document is a final representation of his/her present plan to convey property at death
Free of Undue Influence, Duress or Fraud
Formalities Required in the Will
Applies to wills and codicils or any attempt to dispose of probate property at death
- In writing
- Signed by testator
- Witnessed or holographic
- Published or declared? – not normally required but wise and it helps establish testamentary intent
- Dated? – not normally required but wise and helps establish order of wills if more than one
- Dispensing with formalities – substantial compliance or harmless error
Functions Served by Having Formalities
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The Evidentiary Function.
Formalities assure that there is permanent reliable evidence of the testator’s intent to present to a court, if needed.
The Channeling Function.
Formalities assure that the document enters the legal system in a manner that courts (and executors) can process routinely and with few administrative hurdles.
The Ritual (Cautionary) Function.
Formalities assure that the testator's intent to dispose of property is serious, that the testator understands this is a will and that the document is final and not a draft.
The Protective Function.
Formalities assure that the testator is protected from her own lack of capacity, that testator’s intent is not the product of undue influence, fraud, delusion, or coercion and that the document and signatures are not the products of forgery or perjury.
UPC §2-502(a) - Execution; Witnessed or Notarized Wills
Except as otherwise provided…, a will must be:
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(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)[added in 2008] acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments . .
[It is worth noting that the UPC is a “modern” statute that does away with many of the formalities of old but which are still alive and well in some states. Caution - Even some of the states that have adopted the UPC have not adopted 3(B) yet.]
What Constitutes Testator’s Signature?
Best - If testator signs her complete, legal name (and also identifies nicknames) without the assistance of others and does so in the place for it at the end of the will.
Location on the Will for Signature
Best to have signature at end in the block for testator’s signature! This was requirement of English Wills Act of 1837. It also had the effect of establishing the end of the will.
Signed by Another on Behalf of Testator
Consider someone who is paralyzed or frail. One possibility is for another person to assist testator to write signature or make mark. But what if testator cannot even do that much - can someone else sign it for testator?
2-502(a)(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…”
What are Witnesses Attesting To?
§2-502 - Execution; Witnessed or Notarized Wills
“witnessed either
the signing of the will … or
the testator’s acknowledgment of that signature [as her own] or
acknowledgment of the will [as her own]”
Who May Be a Witness?
Witness must be competent.
UPC 2-505(a) says “An individual generally competent to be a witness [at trial] may act as a witness to a will.”
What if witness is “interested?”
Common law – will was void
Purging statutes – two types:
Entire portion going to interested witness is purged
Amount above intestate share going to interested witness purged
UPC 2-505(b): “The signing of a will by an interested witness does not invalidate the will or any provision of it.”
Notary? – UPC §2-502(a)(3)(B) added in 2008. Should be viewed as a litigating position until adopted by state.
UPC §2-502(a) - Execution; Witnessed or Notarized Wills
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(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. [added in 2008] acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgment
Presence in Will Execution
Line of sight test: The testator must have been able to see the witnesses. The testator need not have actually seen the witnesses, but must have been capable of seeing them.
Conscious presence test: The testator must, through sight or hearing or general consciousness of events, comprehend that the witness is in the act of signing.
UPC (1990) rule: There is no requirement that the witnesses sign in the testator’s presence.
Self-Proved Will/Affidavit
What does self-proved will affidavit do that attestation does not?
Notary fulfills the function of having a magistrate or other official of the court present at the signing of the will so that it does not have to be repeated in a will contest
Attestation - Raises only a rebuttable presumption that facts stated in clause are correct. UPC §3-406
Therefore will witnesses may have to be called to be trial witnesses on matters of formalities in addition to capacity and undue influence
Self-Proved Will – Provides a conclusive presumption that T and Ws have satisfied statute’s signature and witnessing requirements. UPC §3-406
Therefore will witnesses cannot be called as trial witnesses to question whether the formalities were satisfied
Will witnesses still may be called to be trial witnesses with respect to questions of capacity or undue influence. UPC §3-407.
Holographic Wills- What Must Be Handwritten?
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A typical first-generation statute provides that: “A holographic will is one that is entirely written, dated, and signed by the hand of the testator. It is subject to no other form, and need not be witnessed.” (10 states mostly in South-central and mid-Atlantic)
A typical second-generation statute provides that: “A will which does not comply with the requirements for an attested will is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.” (7 states)
A typical third-generation statute provides that: “A will which does not comply with the requirements for an attested will is valid as a holographic will, whether or not witnessed, if the signature and the material portions of the document are in the handwriting of the testator.” (7 states & UPC 2-502(b).)
Substantial Compliance
The court may deem a defectively executed will as being in accord with statutory formalities if there is clear and convincing evidence that the purposes of those formalities were served.
Harmless Error
The court may excuse noncompliance if there is clear and convincing evidence that the decedent intended the document to be his will. This is the rule of UPC §2-503.
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:
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(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.
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 at the time of death the testator is domiciled, has a place of abode, or is a national.
There are three major categories of ethical issues in estate planning, including whether it is ethical for a lawyer:
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- to name herself as the executor,
- to name herself as a beneficiary in a client’s will,
- to include a clause limiting her liability in a will, and
- to represent a husband and wife or a testator and beneficiary.
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….
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.
