Wills

Question 1

Might remote execution and attestation of a will satisfy statutory presence requirements during a pandemic?

Answer 1

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.

Question 1

Is a will that accurately represents the testator’s wishes but fails to comply with statutory requirements for proper execution enforceable?

(under strict compliance)

Answer 1

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.

Question 2

Does evidence of a testator’s intent to sign a will override an incomplete signature? (under strict compliance)

Answer 2

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.

Question 3

self-proving affidavit

Answer 3

affidavit accompanying will and signed by testator and witnesses, certifies that the will has been executed according to statutory requirements

Question 4

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?

Answer 4

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.

Question 5

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?

Answer 5

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.

Question 6

dispensing power doctrine (harmless error) [UPC § 2-503]

Answer 6

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.

Question 7

Can an electronic document be a valid will?

Answer 7

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.

Question 8

Can a will that the decedent did not review and give final assent to be admitted to probate?

Answer 8

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.

Question 9

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?

Answer 9

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.

Question 10

holographic will

Answer 10

will handwritten by testator

Question 11

establishing testamentary intent under UPC

Answer 11

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

Question 12

validity of preprinted portions of holographic will (under UPC)

Answer 12

holographic will may be valid though immaterial parts such as date or introductory wording are preprinted

Question 13

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?

Answer 13

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.

Question 14

extrinsic evidence

Answer 14

evidence outside “four corners” of will — such as circumstances under which provision was written

Question 15

May a written revocation on the back of a will be an effective revocation of the will?

Answer 15

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.”

Question 16

2 methods of revoking will

Answer 16

executing subsequent will that revokes previous one (expressly or by inconsistency)

“performing revocatory act” (tearing, burning, obliterating — completely or partially)

Question 17

Can a will be revoked by a subsequent inconsistent will?

Answer 17

A will is revoked when a testator executes a subsequent inconsistent will or where the testator burns or destroys the will.

The probate code typically requires a will to be signed by the testator and two witnesses. However, the probate code makes exception by allowing for defective wills to be admitted to probate as long as there is clear and convincing evidence that the testator intended the will to constitute the testator’s will.

Question 18

Can a few isolated acts of abnormal behavior satisfactorily rebut an inference of testamentary capacity?

Answer 18

No. A testator is presumed sane, particularly when two witnesses have signed the will. This is because such witnesses are obligated to assess the sanity of the testator before signing the will themselves. Thus, where the drawer of the will and the two witnesses later testify that they believe the testator was of unsound mind, such testimony is carefully scrutinized.

Question 19

May a party challenge a testator’s testamentary capacity by showing that the testator may have been suffering from Alzheimer’s disease at the time of executing the will?

Answer 19

No. Showing that the testator may have been suffering from Alzheimer’s, without showing how the disease prevented the testator from having a decided and rational desire regarding the disposition of her property, is insufficient to set aside a will for lack of testamentary capacity.

Question 20

conservator

Answer 20

court appointed custodian of property belonging to sound found to bea unable to manage his/her property

Question 21

testamentary capacity

Answer 21

requisite level of T’s mental capacity at time of execution of will

Question 22

If the distribution of a testator’s estate under a will is the product of insane delusions, can the will stand?

Answer 22

No. Where a testator was insane at the time of executing the will and the distribution of the estate under that will was the product of testator’s insanity, the will cannot stand.

Question 23

If a testator was suffering from insane delusions at the time of executing his will, but the delusions did not impact the distribution of his estate and the testator was otherwise of sound mind, must the will be set aside for lack of testamentary capacity?

Answer 23

No. Unless there is a causal relationship between the testator’s insane delusions and the distribution of the estate, or the testator otherwise lacked a sound mind, the will cannot be set aside for lack of testamentary capacity due to insanity.

To have a sound mind a testator must not suffer from generalized mental illness that affects his capacity to understand the following:

(1) the nature of his actions,
(2) the extent of his estate,
(3) the disposition of his estate,
(4) the natural objects of his bounty.
(5) the will must express the
testator’s wishes.

Having a sound mind also includes not having insane delusions that impact the distribution of the estate.

Question 24

May the conduct of a named beneficiary in a will amount to undue influence even without proof of specific acts of the beneficiary at the time the will was executed?

Answer 24

Yes. Any form of coercion that subverts the sound judgment and genuine desire of an individual is enough to constitute undue influence. A fiduciary who benefits in a transaction with the person for whom he is a fiduciary bears the burden of establishing that the transaction did not violate his obligations. The burden to prove the transaction was fair is generally met if the fiduciary shows that the principal made the request with full knowledge and intent or with the advice of independent legal counsel.

Question 25

To overcome the presumption of undue influence where a testator leaves her estate to a person with whom she has a confidential or fiduciary relationship, must the attorney drafting the will have counseled testator regarding disposition of her estate to the person with whom she has such a relationship?

Answer 25

Yes. Although the presumption of undue influence may be overcome by a showing that the testator had the independent advice or counsel regarding the distribution of the estate, the presumption will not be overcome where the testator leaves her estate to a beneficiary with whom she had a fiduciary or confidential relationship, and the proponent does not show there was independent advice and counsel pertaining to the distribution of testator’s estate to a beneficiary with whom she had a confidential or fiduciary relationship

Question 26

Where contestants of a will have shown that a beneficiary of the will had the opportunity and motive to unduly influence the testator’s testamentary plan, must the contestants also prove that the beneficiary substituted his wishes for the testator’s preferred testamentary plan?

Answer 26

Yes. Showing that a confidential relationship existed between the testator and a beneficiary of the will where the beneficiary had the motive and opportunity to unduly influence the testator’s testamentary plan is just a preliminary showing. To prove undue influence and set aside the will, the contestants must further prove that undue influence occurred by showing that the beneficiary substituted his wishes for the testator’s intended testamentary plan.

Question 27

Where a beneficiary of a will prevents the testator from executing a new will in favor of another party by fraud, duress or undue influence, and the testator dies without executing the new will or revoking the old will, may a constructive trust be placed on the bequest to the beneficiary benefitting from his fraud?

Answer 27

yes. Although New York has not previously addressed the precise question of whether a constructive trust may be imposed where a testator is prevented by fraud, duress or undue influence from revoking an existing will and executing a new will devising the estate to different parties, Comment i of § 184 of the Restatement of the Law of Restitution as well as other leading writers set out the rule to be applied in such cases. These sources provide that a constructive trust should be imposed on the bequest to the wrongful beneficiary in favor of the intended beneficiaries under the will that the testator was prevented from executing as a result of the wrongful beneficiary’s fraud, duress or undue influence.

Question 28

May an injured party establish the tort of intentional interference with an expectancy of inheritance where the tortious interference involved undue influence over the testator that the injured party failed to challenge in probate court because the tortfeasor interfered with the prospective beneficiary’s ability to seek a remedy in probate court?

Answer 28

Yes. If an injured party shows that he had an expectancy that the defendant’s tortious conduct caused him to lose, and probate of the will has already been completed, the tort of intentional interference with an expectancy may be established without first exhausting probate remedies. Establishing a claim for intentional interference with an expectancy of inheritance requires a showing that there was an expectancy, interference with that expectancy by tortious conduct, causation and damages. Although DeWitt v. Duce, 408 So.2d 216 (Fla. 1981), requires that if an adequate remedy exists in probate court, that must be pursued before bringing the tort claim. However, an exception applies where the probate process is already complete when the injured party discovers the tortious conduct since no adequate remedy in probate would actually be available.

Question 29

expectancy interest

Answer 29

expectation or contingency of obtaining possession of a right in the future

Question 30

Where the language of a will is not ambiguous or susceptible to different meanings, may testimony be offered as evidence of the intention of the testator in interpreting the meaning of that language?

Answer 30

No. Unless there is a latent ambiguity in a will’s language, extrinsic evidence of the testator’s intentions as to that language may not be offered to prove its meaning. If the language of the will leaves no doubt as to the property to be bequeathed or the beneficiary to receive the property, then the will must be enforced as it is written

Question 31

latent ambiguity

Answer 31

ambiguity apparent in context (w/ the introduction of extrinsic evidence)

Question 32

patent ambiguity

Answer 32

ambiguity apparent on its face

Question 33

In some jurisdictions, may courts consider extrinsic evidence of the testator’s intent to resolve ambiguities in the will that remain despite consideration of the surrounding circumstances, regardless of whether the ambiguities are latent or patent?

Answer 33

Yes. In some jurisdictions, courts may consider extrinsic evidence of the testator’s intent to resolve ambiguities in the will that remain despite consideration of the surrounding circumstances, regardless of whether the ambiguities are latent or patent.

Question 34

If property described in a will does not match any of the testator’s property at death, may certain aspects of the description be disregarded as long as the remaining aspects match property owned by the testator at death?

Answer 34

Yes. Under the principle of “falsa demonstratio non nocet” or “mere erroneous description does not vitiate,” if property described in a will does not match any of the testator’s property at death, then the less essential characteristics of the description may be disregarded as long as the remaining characteristics match existing property in the estate.

Question 35

Is reformation of an unambiguous will permissible if clear and convincing evidence establishes an error in the expression of the testator’s intent and establishes the testator’s actual specific intent at the time the will was drafted?

Answer 35

Yes. Reformation of an unambiguous will is permissible if clear and convincing evidence establishes an error in the expression of the testator’s intent and establishes the testator’s actual specific intent at the time the will was drafted. State law allows the admission of extrinsic evidence to establish that a will is ambiguous and to clarify ambiguities in a will. Extrinsic evidence is not authorized to correct a mistake in a will if the will is unambiguous.

Question 36

Where a devise in a will includes language of survivorship, such as “if she survives me,” does this language adequately indicate that the testator intended to negate operation of the antilapse statute?

Answer 36

No. Language of survivorship alone does not establish that the testator included this language to provide for the contingency that the devisee would predecease the testator, making the antilapse statute inapplicable. Without specific language indicating the testator’s intention that the antilapse statute be inapplicable, or providing an alternate beneficiary, mere survivorship language does not overcome the presumption that the testator wished to avoid intestacy.

Question 37

May a devise of set share amounts to a specific number of named beneficiaries who do not represent the entire class be deemed a class gift?

Answer 37

No. To be deemed a class gift, the devise must be uncertain as to the number of class members and the size of their shares, as these numbers are determined at a later time according to how many class members are surviving after the death of the testator. This uncertainty does not preclude the testator from naming the members of the class, but the testator’s intent to give the surviving members a right of survivorship to the shares of predeceased class members must be evident in the language of the will.

Question 38

class gift

Answer 38

gift to a group of unspecified persons whose identity, number and share of gift will be determined in the future