wills formalities

Question 1

What are the two types of wills?

Answer 1

Formal and holographic

Formal wills have specific requirements, while holographic wills are handwritten by the testator.

Question 2

What are the formal requirements for a valid will?

Answer 2

• Writing,
• signed by testator,
• witnessed by two witnesses

Some states may require additional subscription by the testator.

Question 3

What does it mean to die testate?

Answer 3

To die with a valid will

The deceased is referred to as a testator.

Question 4

What is the significance of compliance with the Wills Act?

Answer 4

Ensures probate property is distributed by testator intent

This prevents intestacy.

Question 5

What is the Worst Evidence Problem in relation to wills?

Answer 5

A will does not take effect until after the testator dies

This complicates assessing authenticity and meaning.

Question 6

What is the goal of will formalities?

Answer 6

Standardize wills to protect testator and clarify intent
This balances the risks of false positives and false negatives.

Question 7

What are the three core formalities for an attested will?

Answer 7

Writing, signature, attestation via two witnesses

Witnesses must be present with each other.

Question 8

What does the 2008 UPC § 2-502 state about witnessed/notarized wills?

Answer 8

• Must be in writing,
• signed by testator,and
• Attestation via signature by 2 witnesses or notarization by testator

This applies unless it is a holographic will.

Question 9

What constitutes a valid holographic will?

Answer 9

Signature and material portions in the testator’s handwriting

It can be valid even if not witnessed.

Question 10

What is the role of extrinsic evidence regarding a will?

Answer 10

Establish intent that a document is the testator’s will

This is applicable for both attested and holographic wills.

Question 11

What happens when all requirements for an attested will are not met?

Answer 11

Tools such as substantial compliance or harmless error may be used

unless strictcomplaince than the estate will pass intestate

These are ad hoc responses to the failure of the will.

Question 12

What is the primary purpose of formalities in wills?

Answer 12

Evidentiary Function: Enabling court to decide a will is authentic without live testimony from testator

The evidentiary function ensures that the intentions of the testator are reliably documented.

Question 13

What are the secondary purposes of formalities in wills?

Answer 13

• Channeling function: Standardize will forms
• Cautionary/Ritual Function: Impress significance of will on a testator
• Protective Function: Protect Testator from manipulative imposition
• (some argue) Expressive Function: Gives deceased one last opportunity to make a statement

Each function serves to reinforce the integrity and intention behind the will.

Question 14

What does the evidentiary function ensure regarding testamentary intent?

Answer 14

Writing ensures evidence is in reliable/permanent form. Signature is evidence of genuineness.

This function is crucial for validating the authenticity of the will.

Question 15

What is the role of the channelling function in will formalities?

Answer 15

Creates uniformity among wills for courts.
courts can process it routinely because testament is conventionally expressed

Question 16

How does the cautionary function affect the testator?

Answer 16

Impress seriousness of the will on testator.

This function reinforces the importance of the testator’s statements in the will. bc written and signed it impresses adoption

Question 17

What does the protective function ensure for the testator?

Answer 17

Attestation protects the testator by ensuring he is present when the will is formalized.

limits coercive influences

Witnesses should be disinterested and free from coercive influences.

Question 18

What is the traditional rule concerning the execution of wills?

Answer 18

Wills must be executed in **strict compliance **with all will formalities including writing, signature, witnesses, and any other requirements.

This rule guards against spurious findings of authenticity.

Question 19

What does an attestation clause create concerning a will’s execution?

Answer 19

Creates a rebuttable presumption of due execution. So if witness dies, still have a document stating witness was present

“we certify above insturmentwas signed on x”

Question 20

What is required for a will to be acknowledged according to strict compliance w wills acts formalities (In re Groffman?

Answer 20

A will must be acknowledged in the presence of two witnesses present at the same time.

(UPC has changed this )

Question 21

Define ‘Line of Sight’ in the context of witness presence.

Answer 21

Testator must be able to see witnesses sign, does not have to actually see them as long as he is capable of seeing them.

This applies even to blind testators considering their potential ability to see.

Question 22

What does ‘Conscious Presence’ mean regarding witness presence?

Answer 22

A witness is in the presence of the testator if the testator comprehends that the witness is signing through sight, hearing, or general consciousness.

This test evaluates the mental apprehension of the testator.

Question 23

True or False: Under UPC, the presence requirement is dispensed with except for when another person signs on a testator’s behalf.

Answer 23

True

This reflects a modern approach to accommodating various circumstances.

Question 24

What did the Matter of Ryan establish regarding the presence requirement for wills?

Answer 24

Under Covid conditions, virtual presence meets the presence requirement for wills.

This adaptation reflects changing societal norms in light of public health concerns.

Question 25

What is the purpose of the requirement for the testator to sign a will according to state laws and UPC 2-502(a)?

Answer 25

A will must be signed by the testator to provide evidence of finality and genuineness. ## Footnote This requirement distinguishes a will from drafts or notes.

Question 26

What was held in the case of In re estate of McCabe regarding the signature?

Answer 26

A mark not commonly regarded as a formal signature ('X') was sufficient as it came with the requisite intent to serve as a signature. ## Footnote This case illustrates that intent can validate a non-traditional signature.

Question 27

How was due execution of a will traditionally proved after the testator's death?

Answer 27

By witness testimony in court or submission of sworn affidavits. ## Footnote Attestation clauses can help ensure the veracity of a will if witnesses are unavailable.

Question 28

What does UPC encourage regarding witnesses and affidavits?

Answer 28

UPC encourages witnesses to make an affidavit swearing to the will's due execution. ## Footnote Almost all states recognize self-proving affidavits, which differ from attestation clauses.

Question 29

What are the two types of self-proving affidavits authorized by UPC 2-504?

Answer 29

* 2-504(a): Combined attestation and self-proving affidavit * 2-504(b): Separate affidavit affixed to an already signed will (more complicated) ## Footnote The latter must be signed by the testator and witnesses before a notary.

Question 30

What does UPC 3-406(1) state about self-proved wills?

Answer 30

A self-proved will cannot have its execution contested unless there is evidence of fraud or forgery. ## Footnote It does not limit challenges based on lack of capacity or undue influence.

Question 31

What was the ruling in Taylor v. Holt regarding computer-generated signatures?

Answer 31

The court upheld the use of a computer-generated signature as it was intended to serve as a signature, despite being distinct from a handwritten one. ## Footnote This case shows that intent is crucial in determining signature validity.

Question 32

What is the order of signing in relation to witnesses?

Answer 32

The testator must sign before the witness attests to a mark. ## Footnote This ensures the proper sequence in the execution of a will.

Question 33

According to UPC 2-502(a)(3)(A), when must witnesses sign?

Answer 33

Witnesses must sign within a reasonable time, which can include after the testator's death. ## Footnote This allows for some flexibility in the witnessing process.

Question 34

What was the outcome in Bitetzakis v. Bitetzakis regarding the signature?

Answer 34

The will must include either a full signature or a mark with intent to be a formal signature. (wife told him to stop) ## Footnote The decedent's incomplete signature did not meet the statutory requirements.

Question 35

What is a Purging Statute?

Answer 35

A will can be attested to by an interested witness and entered into probate but voided any bequest in the interested will Slim majority of states have these. Most purge only the excess benefit that the witness would receive beyond intestacy. However some still purge the witness’ entire devise

Question 36

What trend is observed regarding purging interested witnesses?

Answer 36

UPC 2-505(b) and a large minority of states do not purge interested witnesses but advise against using them. ## Footnote Some states adopt a middle ground with rebuttable presumptions of undue influence.

Question 37

What is the Strict Compliance Rule?

Answer 37

It creates a conclusive presumption of invalidity for an imperfectly executed will, denying probate unless every statutory formality is met. ## Footnote This rule emphasizes the importance of strict adherence to formalities.

Question 38

What was held in In re Pavlinko’s Estate regarding improperly signed wills?

Answer 38

A will not properly signed is invalid in PA. ## Footnote The court emphasized the necessity of a signature at the end of the document.

Question 39

What was the ruling in In re Snide regarding mutual wills?

Answer 39

Dual wills signed as a single testamentary scheme are valid if devoid of signs of fraud. Case of clear mistake caused by the fact that signers did not check before signing. Court declined to find decedent lacked testamentary intent just because he signed wrong will ## Footnote The court recognized the intent behind the wills despite a signing error.

Question 40

What are two solutions for the switched wills blunder?

Answer 40

* Probate the intended will despite lack of signature (abandoning strict compliance) * Probate the signed will but reform its terms ## Footnote These solutions involve overcoming strict compliance issues.

Question 41

What is the role of Guardians ad Litem in litigation?

Answer 41

To represent the interests of a minor or unborn person in litigation. ## Footnote They act as fiduciaries, prioritizing the minor's interests over other considerations.

Question 42

Before Purging Statutes

Answer 42

CL if the will was attested by an interested witness the will could not be proved to probate, an interested party couldn’t testify and thus the will gets thrown out some states (MA) use to hold purging w a vengance where even spouses of interested witnesses could not testify

Question 43

What is the Substantial Compliance Doctrine?

Answer 43

If the manner in which a will was executed satisfied the wills act formalities, it will be treated as being within substantial compliance of the Wills Act and admitted into probate. ## Footnote This doctrine was proposed by Langbein as a response to strict compliance.

Question 44

What are the two tests for substantial compliance of a will?

Answer 44

* Does the noncomplying document express testamentary intent? (does the will complay with rules) * Does it sufficiently approximate Wills Act formality to enable the court to find it serves the purpose of the wills act? (clear and convincing evidence)

Question 45

In re Will of Ranney (NJ)

Answer 45

The court held the will could be probated based on clear and convincing evidence that it substantially complied with the Wills Act. ## Footnote Lawyer error in type of affidavit used (self authenticating v two step) meant that the affidavit was a false declaration and will was not in compliance with wills act.

Question 46

What was the outcome in In re Will of Ferree regarding substantial compliance?

Answer 46

The court declined to find substantial compliance because formalities required by statute had been disregarded.

Question 47

What did Smith v. Smith determine about non-holographic wills?

Answer 47

The Ky court found that a non-holographic will with one witness is inapplicable under the statute.

Question 48

What is the Harmless Error Rule?

Answer 48

If a document was not executed in compliance with a will, it is treated as if it was in compliance if the proponent shows clear and convincing evidence the document was to serve as a will. The larger the departure from formality, the harder to satisfy court that instrument reflects the testator’s intent different from substantial compliance in that it removes the substanitally comply w wills act formailites part

Question 49

Which states have endorsed the Harmless Error Rule?

Answer 49

12 states ## Footnote This rule is codified in UPC 2-503 and endorsed by the restatement 3d.

Question 50

What does Australia’s Natural Experiment argue about the harmless error rule?

Answer 50

It argues that harmless error rule is better because courts do not read in a near-miss standard and allows for noncompliance to be excused.

Question 51

What are the two requirements for a writing to be probated under the harmless error rule as per In re Probate of Will and Codicil of Macool?

Answer 51

* Decedent actually reviewed the document in question * Gave final assent to it ## Footnote Macool went to L to fix the will, he had a rought draft, and then she died before he wrote the will and she couldnt sign it / see the final thing

Question 52

What is the significance of the Uniform Electronic Transactions Act in relation to electronic wills?

Answer 52

It mandates equivalence between electronic and tangible signature mediums, although it excludes wills, codicils, and testamentary trusts.

Question 53

What was the ruling in In re Estate of Horton regarding electronic documents?

Answer 53

An electronic document can be a valid will if clear and convincing evidence shows it was meant to be a will. ## Footnote suicide case where he left a note that insturcuted family to go onto his comptuer for the will

Question 54

What does the Uniform Electronic Wills Act state about electronic wills?

Answer 54

A will may exist as an electronic medium if it is retrievable in perceivable form.

Question 55

What does UPC 2-502(a)(3) provide regarding the validity of wills?

Answer 55

A will is valid if signed by two witnesses or notarized.

Question 56

In re Estate of Anton (assent)

Answer 56

- He assents with enthusiasm. To his lawyer that it is his will. So absence of signature was okay

Question 57

What is a holographic will?

Answer 57

Will written by hand and signed by testator. No witnesses needed. ## Footnote Authorized by UPC 2-502(b), but not in MA.

Question 58

What are the requirements of a holographic will according to Madoff?

Answer 58

* In Testator’s handwriting * Signed by testator * Testamentary intent.

Question 59

What is the significance of discerning testamentary intent in holographic wills?

Answer 59

Removing statutory requirements based on the idea that handwriting is more evidentially sufficient than a typed, signed will.

Question 60

In re Kimmel’s Estate, what was the court's holding regarding informal documents?

Answer 60

If informal document contains evidence of intent to make a posthumous gift, it is enforceable as a will even if it contains non-testamentary language. use of "father" as signature in letter to kids further the conditional nature of the writing "if anything happens"

Question 61

What was the outcome in Estate of Cecil George Harris regarding carvings?

Answer 61

Court admitted carvings on a tractor fender into probate as a will.

Question 62

What happens to preprinted will forms that do not comply with formalities?

Answer 62

They may not get probate but can be probated as a holographic will if enough is handwritten.

Question 63

What does Madoff suggest regarding the handwriting requirement for holographic wills?

Answer 63

Requiring the entire will to be written/signed/dated in T’s handwriting can lead to disqualification for letterhead.

Question 64

What was the holding in In re Estate of Gonzalez regarding partially handwritten wills?

Answer 64

Preprinted text may be read in conjunction with handwritten portions if evidence demonstrates the decedent’s testamentary intent. A holograph must have its signature and material provisions in the testator's handwriting

Question 65

What was the court's stance in In re Will of Ferree regarding unintelligible handwritten parts?

Answer 65

Rejected that a will form could be probated as a holographic will because the handwritten parts were unintelligible without the total document.

Question 66

Where can a signature be placed on a will for it to be admitted to probate?

Answer 66

At the beginning, end, or anywhere on the document.

Question 67

In re Estate of Baker, what constituted a will signature?

Answer 67

'My name is Alva Baker' at the beginning of a document.

Question 68

What does the 1969 UPC require regarding material provisions in a holographic will?

Answer 68

Only that **material provisions** be handwritten; immaterial parts can be printed or stamped.

Question 69

What is the Surplusage Theory in relation to wills?

Answer 69

Requires that a will be a coherent document when printed parts are removed. "scissors approach' ## Footnote 1/3rd state have adopted this

Question 70

What does the modern UPC require regarding handwritten portions in a will? (1990)

Answer 70

UPC requires only that material **portions** be handwritten read the handwriting in conjunction with the printed stuff (more inclusive than suplursage) Extrinsic evidence can also be used to establish testator intent here

Question 71

What was the court's decision in In re Estate of Kuralt regarding testamentary intent?

Answer 71

The letter had testamentary intent where evidence showed the testator believed he was close to death at the time of writing. note was a codicil, and there was extrinsic evidence to indicate that he wanted the other woman to have the MT ranch (other letters and convenyences)

Question 72

What was the outcome in Minton v. Minton regarding a letter modifying a will?

Answer 72

The letter stating 'if anything happens before I amend my will' was a valid codicil to his old will.