Trust and Wills - Wills

From Substantial Compliance to Harmless Error

"Harmless error" begins to replace "substantial compliance." Harmless error is more forgiving. But a writing is absolutely required. And a signature ranks next in importance. Attestation much less so. But courts vary.

UPC and SD do not have a disinterested witness rule

"The signing of a will by an interested witness does not invalidate the will or any provision of it."

Disqualification and Purging

(1) Old Rule: Interested witnesses could not testify so the will could not be probated. (2) 1752 Reform enacted a purging statute: will could be admitted to probate but the bequest to the disinterested witness was void. (3) Excess Benefit or Partial Purging: (e.g., New York) only purge the excess benefit that the interested witness was provided (if any) over intestacy.

Harmless Error Rule under UPC

(Adopted in 10 states including SD) if the writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute[valid testamentary instrument] a will, codicil, revocation, or addition or alteration, or revival, will be considered.

UPC and SD on Revival

(a) If a subsequent will wholly revoking a previous will is itself later revoked, the previous will remains revoked unless evidence shows otherwise. (b) If a codicil partly revoking a previous will is later revoked, the revoked part of the previous will is revived unless evidence shows otherwise.

Example of Revocation

- 2010: "Rolex and home to Bob, rest to Susan." - 2013: " If I croak, my rolex to my girlfriend, Betty." o Here, these are inconsistent and the rolex part of the 2010 will is revoked, so Bob still gets home and Susan gets the rest. - 2014: "Upon my death, residue to Bob." o Old thinking: inconsistent with "rest to Susan" from 2010 - so residue and house go to Bob o New thinking: if you do a new residual clause, you revoke the whole old will and codicils by inconsistency. - 2015: "Hereby revoking all prior wills and codicils, my home to Bob." o Easy - revoked by simply saying it.

Harmless Error v Clear and Convincing Evidence Wills (in SD)

- Does not meet the requirements of a holographic will or a holographic will. - You can still have this honored as a will if you establish by clear and convincing evidence that this was intended by the testator to be their last will and testament. - You need the inadequate document + some other evidence. - You need something beyond the document to get to the threshold.

Berry v. Trible - Holographic Will (Lawyer sent client a draft will who then made handwritten changes and signed each page. On one page: "I give and bequeath all" with an arrow pointing to handwriting.)

HOLD: Not a holographic will because typed text interwoven "both physically and in sequence of thought." Plus it's messy. No points for that.

Examples of Acts of Independent Significance

- E.g., "At my death, my leather jacket to my girlfriend + signature" (on the jacket). If decedent had serial girlfriends, doctrine helps. The identity of the gf at the time is proven by acts of independent significance. - E.g., "To each of my employees, $5,000 each." The identity of the employees proven by AIS - E.g., "To Sam, the pianos in my house on my date of death." Which pianos is proven by AIS - E.g., "$100 to Sam if the Cubs win the World Series before my death." - signed - E.g., "10,000 to Professor Simmons unless I later change my mind about it." This doesn't work b/c the testator changing his mind about the bequest does not have significance apart from its effect on the disposition in the will (whereas the Cubs winning the world series would be significant to a lot of people) - E.g., can depend on the execution/revocation of another person's will - this can be an AIS

Examples of Republication by Codicil

- E.g., Original will valid but a bequest to an interested witness would have been purged but a codicil without interested witnesses republishes it and cures the purge! - E.g., Testator executes Will 1. Then executes Will 2 wholly revoking Will 1. Then executes a codicil to Will 1. Republication "revives" it even if revival does not. (And Will 2 would be revoked by implication or inconsistency.)

Lost Wills and the Presumption of Revocatoin

- Presumption of revocation if will is found in the testator's possession mutilated (although clearly someone else may have done it). - You can prove the contents of a lost will (e.g., with a photocopy) where there's no evidence of revocation (e.g., the lawyer or a third party lost it or the presumption is rebutted).

Components of Wills

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Holographic Will

1. 1st Generation Statutes. Must be entirely in the testator's handwriting plus dated (& signed). 2. 2nd Generation Statutes (e.g., 1969 UPC). "Material provisions" must be in the testator's handwriting (& signed). 3. 3rd Generation Statutes (e.g., 1990 UPC; SD). "Material portions" + extrinsic evidence admissible regarding the printed portions (& signed). But too much printed material will disqualify as a holographic. - Recognized in ½ the states; not Minnesota nor Iowa.

Three ways to Revoke

1. Act by the testator (with the intent to revoke) 2. Act directed by the testator (in the testator's conscious presence so if testator calls attorney to rip up their will, it's invalid b/c not in conscious presence) 3. Revocation by later will/codicil (you can revoke your old will with a new one, but to then analyze whether that will is effective, you need to analyze valid will rules) a. Expressly or b. Inconsistency (harder; Ex: "I leave my watch to A" and then later will say "I leave my watch to B," then it's inconsistent and old will is revoked by inconsistency.

Meaning of Signature

1. By mark: - Making an X (bc testator's hand is too shaky) is a signature - Writing script signature on computer in presence of witnesses is a signature 2. Order of Signing: testator must go before the witnesses 3. At the foot or end thereof (subscription): If testator writes "And diamond to Karen" under his signature after he's signed, Will admitted to probate (but addition would be disregarded as an invalid codicil). If he writes "And diamond to Karen under the signature line before signing, then old cases would hold he didn't sign in the right place - whole will invalidated on account of "foot" requirement. 4. Delayed Attestation (per UPC reasonable time): After testator signs, witnesses should sign acknowledging they (a) witnessed the signature; or (b) an acknowledgement thereof. How long thereafter is OK? In New York, 30 days. UPC comment: After death is OK.

Three requirements for subsequent writings

1. Devisee 2. Item 3. Signed Note: only a slim majority of states have adopted this

Why we require will formalities

1. Evidentiary Function 2. Ritual/Cautionary Function. To impress upon the testator the significance of the instrument. a. To allow an authenticity determination without calling a lot of witnesses b. It's culturally ingrained 3. Protective Function. Protect from undue influence 4. Expressive Function. (It's therapeutic. It's impressive)

Attested Will (most common type) (3)

1. In writing 2. Signed (old law: "at the foot or end thereof"; valid if signed at top in SD) -- also note, if testator cannot sign, she can direct another to sign for her 3. Attested (witnessed by 2 witnesses) - old: disinterested witnesses requirement - now: have to be present at time of signing (not UPC, but SD) Note: publication requirement in NY but ("This is my will") not in SD or UPC

Meaning of Presence - Line of Sight - Conscious Presence

1. Line of Sight: English Rule (and some states). Testator must be able to see the witnesses even if he doesn't look directly at them. 2. Conscious Presence: If the testator, through sight, hearing, or general consciousness of events ("mental apprehension") comprehends the witness signing, presence is satisfied.

UPC Holographic Wills

1. Signature 2. Material portions in testator's handwriting

UPC Attested Wills

1. Signature by the testator (or at testator's direction) 2. Signed by two witnesses w/in reasonable time after witnessing the signature or acknowledgement of signature OR 3. Notarized (SD doesn't currently allow notarized wills)

Revival

1. Will #1. 2. Will #2 (revoking Will #1 in whole or in part) 3. Revocation of Will #2 The issue: does revocation of a will that revoked an earlier will revive that earlier will? Most states now permit revival of a revoked will - but not all permit revival of a partly revoked will. A minority of states don't permit revival at all. Note that a lot of factual scenarios will involve overlap of DRR and revival. Arguably, revival displaces the need (or most of the need) for DRR.

Republication by Codicil

A codicil typically recites "I affirm and republish my Will." The Will is then treated as re-executed (re-published; restated) as of that date. Of course, the original will must have been valid to be republished. But even if the codicil doesn't recite republication, the doctrine republishes it. This can be helpful. NOTE: A codicil cannot republish a will that did not meet the formalities requirements (attested, holographic or clear and convincing).

UPC on Contracts to make a Will

A contract to make a will (or devise) or not to revoke one (or die intestate) is valid only if: (i) the will states the provisions of the contract; (ii) the will expressly refers to the contract and it can be proved; or (iii) the contract is in writing and signed. The execution of a joint (or mutual) will does not create a presumption of a contract to make a will. Note: Typically a will contract arises in connection with (a) a prenup; (b) a divorce stipulation; or (c) a caregiver agreement. Joint Wills: You won't draft these. Mutual Wills: Reciprocal or mirror-image wills.

R3d on DRR

A partial or complete revocation of a will is presumptively ineffective if the testator made the revocation: (1) in unsuccessfully attempting to achieve a dispositive objective (This is LaCroix); or (2) because of a false assumption of law or fact which is recited in the revoking instrument or proved by clear and convincing evidence. And it's only a presumption. A rule of presumed intent, not substantive law.

Meaning of Writing

A will has to be in writing but it doesn't have to be on paper.

Notarized Will

Acknowledged before a notary or other individual authorized by law to take acknowledgements. (UPC allows this)

Doctrine of Integration

All papers present at the time of execution intended to be a part of the will are treated as part of the will.

Holographic Will

Allowed in UPC and SD 1. Signature of the testator and 2. (a) old: entirely in testator's handwriting (b) now: material portions of the document are in the testator's handwriting

Self-Proved Will

An attested will with an affidavit (don't need to call witnesses) In some states, a will is self-proving when two witnesses sign under penalty of perjury that they observed the willmaker sign it and that he told them it was his will. If no one contests the validity of the will, the probate court will accept the will without hearing the testimony of the witnesses or other evidence.

No Rearrangement Rule in a partial revocation

And even those that do permit partial revocation by physical act may not permit "rearrangement:" [meaning you need to cut out the whole sentence not just words] - E.g., "I give the sum of $10,000 to Alfred and Batman together, residue to Robin." "I give the sum of $10,000 to Alfred and (crossed out "Alfred and") Batman together (crossed out "together), residue to Robin." Under the no rearrangements rule, Alfred = $0. Batman takes $5,000; rest to Robin. But the Restatement (Third) of Property does permit rearranging by deletion of selective words. - E.g., Batman would take $10,000 (rest to Robin). UPC is silent on this controversy.

Substantial Compliance

Strong evidence of intent and satisfaction of the purposes of the Wills act should excuse an imperfect execution. a. Clear and convincing evidence of testamentary intent b. Form sufficiently approximates the Wills Act formality to enable the court to conclude that it serves the purposes of the wills act Note: a will missing required witnesses can never be in substantial compliance

An Alternative Disposition That Fails

Teresa writes "VOID" across her will and instructs her lawyer to prepare a new one which he does and which she approves but for some typos but before it can be corrected she dies. Does DRR apply? No, said Estate of Ausley (Okla. 1991) because the lawyer failed to prove that she had a definite alternative plan of disposition.

Meaning of "Dispose of" in UPC

Can you direct that items not disposed of be auctioned with proceeds to named persons? Moor (Del. 2005) says yes. Can you impose a condition on a beneficiary (e.g., not shacking up with "that stripper")? California puts a $5,000 value limit on each item and $25,000 for the whole list. In SD, you can leave a Cadillac Escalade by statement of personal property.

UPC and SD on Thompason v. Royall case

Cancellation need not touch any of the words.

Mistake Recited in Instrument or Proved by Clear and Convincing

E.g., Timmy executes a codicil: "I revoke the legacy to Judy as she is dead" but that's a mistake. DRR applies. - What if the codicil just read "I revoke the legacy to Judy" but Timmy made the change under the mistaken belief Judy was dead? - States requiring the mistake to be evidence in the terms of the revoking instrument would not apply DRR. The Restatement would apply DRR if proven by clear and convincing evidence.

UPC on Divorce after Execution of a Will

Except as otherwise provided by the express terms of a governing instrument, divorce revokes any revocable disposition of property or nomination of a PR. JTWROS property is severed and converted to a tenancy in common.

In re Groffman - strict compliance (Mr. Groffman brought out his will that he'd already signed and said, "I should like you now to witness my will." Mr. Block went with him into the next room. Mr. Block signed. Mr. Leigh - somewhat cumbrous in his movements - was left behind and he signed it when they returned. 1837 English Wills Act: Testator's signature shall be made or acknowledged by the testator in the presence of two witnesses present at the same time who shall subscribe the will in the presence of the testator.)

HELD: Invalid Will. The statute requires that the witnesses be present at the same time - he had the two witnesses sign separately at different times. THIS IS A PRESENT AT THE SAME TIME case.

Stevens v. Casdorph - Strict Compliance Homer asked Debra Pauley (bank employee/notary) to witness the will. He signed it. Debra took it to two witnesses in their "separate work areas" (Homer stayed put); they signed it (but not had not seen Homer sign it. W.VA.: The signature shall be made or the will acknowledged in the presence of at least two competent witnesses, present at the same time, and such witnesses shall subscribe the will in the presence of the testator and each other.)

HELD: Invalid will. THIS IS A CONSCIOUS PRESENCE PROBLEM But Simmons thinks you can still argue "presence"

Keith v. Lulofs - Contracts not to Revoke a Will (Arvid and Lucy were married in 1972, Arvid with one child (Keith) and Lucy with one (Veronica). They executed mirror image ("mutual" - not "joint") wills - all to spouse then to Keith and Veronica equally. Arvid dies in 1996. Lucy changed her will - all to Veronica.)

HOLD: No contract to make a will shown. The execution of a joint (or mutual) will by itself does not create a presumption of a contract to make a will. The son failed to present sufficient circumstantial evidence to show that the decedents intended for the wills to be contracts, as he did not corroborate his testimony as required. Clear and Convincing Evidence and the Statute of Frauds. - Note: No clear and convincing evidence requirement in UPC (but some states require this).

In re Estate of Stoker - Writings and Physical Act of Revocation (Steve calls attorney and directs him to do a holographic will and then goes to his race and is fine and comes back. Then later, he does another will with his attorney: quasi pourover will giving gifts to his two children, naming his gf as PR and leaves the residue to an RLT. Steve and gf break up. Steve takes his copy of the will and pees on it and puts it in the fireplace. (1) Did Steve revoke by physical act? BUT then he directs Anne to take down his words in a note which he dictated: "revoking 1997 trust" + "Destiny and Judy Stoker to get nothing; everything to go to my kids" and "kids have power of attorney over everything I own" then signs it. (2) Has Steve revoked by inconsistency?)

HOLD: (1) NO - this is a copy of the will. It's not a revocation to destroy a copy - it has to be the original. (2) Go through what type of will it is/is it valid? Holographic? No, he dictated it. Can't be a will b/c no witnesses signed this dictation. • BUT can be a will by clear and convincing evidence rule - there was clear and convincing evidence that he intended for this to be his last will in testament: the decedent intended the instrument to be their will!! That's why a draft of a will that the decedent never even saw can never be their will - how can they intend something they've never seen to be their will? Note: He revoked the trust too, clearly b/c this was express in writing, but different rules will apply here.

Thompson v. Royall - Writings and Physical Act of Revocation (Mrs. M. Lou Bowen Kroll had many nieces and nephews. She executes a will; She executes a codicil. She directed the instruments be brought to her house and intended to destroy them before two witnesses and Judge Coulling ~ but Judge Coulling suggested she retain them as memoranda (in case she desired to execute a new will). On the back of the codicil, the Judge wrote: "This will null and void and to be held instead of being destroyed as a memorandum for another will if I desire to make the same." She signed it. The writing didn't touch any words of the codicil. On the back of the manuscript cover of the will, he wrote essentially the same. She signed it.)

HOLD: Cancellation means marks or lines across the written parts of the instrument, "so placed as to physically affect the written portion." This is not a sufficient revocation. The "act" of revocation was not on the will. Note: But the will is a closer call because it wasn't written on the back of the will paper but on its manuscript cover. But under the clear and convincing evidence rule, you could probably successfully argue that the notations were valid codicils which revoked both. Note: Could also use harmless error to prove revocation: clear and convincing evidence that she intended that instrument written by the judge to be a will and effect what she purported to do: invalidate her prior wills. Simmons thinks this is a stronger argument. Note: there's no such thing as a harmless error revocation (you either revoke or you don't - you can't just have clear intent to revoke)

In re Estate of Alburn - Revival (Ottie Alburn had 10 siblings, five of whom predeceased living issue. 1954. Milwaukee Will (left original with attorney) while living with grandniece Viola. Jewelry, etc. to Viola; indebtedness forgiven. Residue: ¼ to Olga, ¼ to Doris, ¼ to Lulu, ¼ to Viola. *No heirs named. 1959. Kanakee (Il.) Will (she keeps) while living with her brother Robert. Jewelry to Lulu and Addie. BOA shares to Olga. Residue: 4/10 to Lulu, 5/10 to Doris, 1/10 to Robert (her only heir named - he'd receive a little more than 1/10 in intestacy (why? b/c of specific bequests). *In both, the bulk went to Olga, Doris and Lulu. 1960. Back in Wisconsin, living with her brother Edwin, she says "I got rid of it" (the 2nd (Kanakee) will) and brings the torn pieces downstairs. Five months later, she dies. She told Olga that she wanted the Milwaukee will to stand. *Wisconsin in 1963 does not allow revival of a revoked will.)

HOLD: DRR applies and revocation is ineffective (to avoid intestacy). Thus, the 2nd (Kanakee) will is valid.

LaCroix v. Senecal - DRR (3.26.51. Celestine Dupre made a will leaving, in Item 5, residue ½ to nephew Nelson Lamoth and ½ to friend Aurea Senecal. 4.10.51. Celestine Dupre made a codicil revoking Item 5, replacing with: residue ½ to nephew Marcisse Lamoth (a/k/a Nelson Lamoth) and ½ to friend Aurea Senecal. Aurea's husband signed as one of the three (!) witnesses and under Connecticut law the bequest in the codicil to his wife Aurea is therefore purged (although the codicil is otherwise valid) - and the bequest to her in the original will was therefore revoked by the codicil.)

HOLD: DRR saves the day! We'll disregard the revocation.

Estate of Dimmitt - Incorp by Reference (if language of the will manifests this intent) (Testator executes deed to niece and puts in in his safe deposit box. Then he executes a will reciting that he already deeded my farm to my niece and for that reason do not devise my farm to her in this Will." )

HOLD: Deed incorporated by reference.

Estate of Morea - Interested Witnesses and Purging Statutes (Decedent Helen Morea had a friend, George Buonaroba and six surviving children. Her Will: Para. 2: Bequests of certain tangible property; to George, 1/8th of the tangible personal property "not otherwise disposed of by Paragraph 2." To Kevin, 1/6 of the residue. The witnesses were: Kevin, George, and a third witness.) (New York law requires at least two uninterested witnesses and partly purges the interested witnesses' bequest, replacing it with intestacy if that is more ("the lesser of his intestate share or his legacy under the will.")

HOLD: George is an interested witness but Kevin is not. Will is valid because there are at least two interested witnesses who have nothing to gain from the will.

In re Probate of Will and Codicil of Macool - Harmless Error Rule (Elmer Macool had seven children, Louise had none and they had none together. They were married 40 years and Louise raised the kids as if they were her own. Louise was also close to her niece, plaintiff Mary Rescigno, whose mother (Louise's sister) died in childbirth. 1995: Both sign wills with attorney Kenneth Calloway. (All to spouse, otherwise to 7 step-kids + step-grandchild Theresa + step-great-grandson Alexander.) 2007: Louise executes a codicil regarding PR appointments. May 2008: Louise hands Calloway a handwritten note regarding will changes. Calloway dictated the will. The secretary typed it up and wrote "rough" on it. Louise died an hour after meeting with Calloway without having seen the draft. The 1995 will (and 2007 codicil) were offered for probate. Mary Rescigno seeks to set them aside and offer the 2008 unsigned draft will. The trial court held that Louise intended to offer her estate plan (and add Mary & Lenora) but did not intend the draft to be her will. The trial court also held that you've got to at least have a signature.)

HOLD: Invalid. In NJ, decedent must have at least (a) reviewed the document; and (b) given final assent to it. It doesn't need to be signed, however. Statute: "although not executed in compliance ...clear and convincing evidence that the decedent intended the document to constitute her will." BUT Black Letter Law: NEED signature - if unsigned, it is invalid (if unsigned, can cite this case)

Clark v. Greenhalge - Incorp by Reference (1972 Writes out 49 item list; then revises it in 1976. 1977 she executed a Will incorporating the existing Memorandum. 1979 she made a plastic-covered notebook in her study entitled "List to be given to Helen Nesmith 1979" including Farm picture to Ginny Clark. 1980 Codicil. The codicil republishes the original will. Then the new memorandum is picked up, because of the new date of will b/c of republication. Executor Greenhalge received the notebook; distributes some property (the stuff going to him); kept the farm painting.)

HOLD: P gets the painting through BOTH incorporation by reference and republication by codicil. - The will incorporated the notebook by reference to "memorandum" because they served the same purpose. - The notebook was not in existence at the time the will was executed, - But it was in existence at the time the codicil was executed and therefore republished the will.

Van Duyne v. Vreeland - Contracts to Make a Will (Vreeland promised to leave John Henry all his property if Nicholas would allow John Henry to live with them. Nicholas agreed. Later, Nicholas approached Vreeland to confirm the agreement as he was writing his own will and planned to disinherit John Henry in reasonable reliance on Vreeland's promise. He received assurances. Nicholas died having disinherited John Henry. Vreeland remarried and contracted the land for someone else. John is in a weird position where he is a third party beneficiary but has not yet been formally breached.)

HOLD: Promissory estoppel. Valid contract to make a will existed. Brickles still had the land but subject to John's claim.

In re Snide - Ad Hoc Relief from Strict Compliance - switched wills case 2 (first spouse's death) (Henry and Rose had three children; they signed I Love You Wills which were switched. Henry dies survived by Rose and the three children (one of whom is a minor). Rose offers the instrument Henry actually signed for probate. An ad litem for the minor objects. The Surrogate reformed the Will by replacing "Harvey" with Rose" and vice versa. The Appellate Court reversed. * If Henry is intestate then the minor child (the other two children having waived objections ≠ disclaimed?) would receive a share under intestacy (but Rose gets all under the will. Ad litem argues lack of testamentary intent (he didn't mean to sign Rose's will.)

HOLD: Reversed. "This is a case of genuine mistake." By testamentary intent we mean a testamentary scheme, not the document prepared.

Harrison v. Bird - Presumption of Physical Act Revocation (Lady called her attorney who had her original will saying she wished to revoke it. He or his secretary, in the presence of each other, tore it up. He sent her a letter saying she's revoked it and enclosed the four pieces for verification, saying also "As it now stands, you are without a will." She died six months later. The pieces were not found.)

HOLD: Revocation invalid because not revoked by her act nor by act of another in her conscious presence. Not revocation by act b/c she didn't tear it up herself or in the conscious presence of her. BUT the will cannot be found, so the presumption is that she revoked it. - Note: How could you rebut the presumption? By showing that folks were going through her house after or before her death. Especially if those folks would benefit in intestacy. Also - how recently was the will last seen? Note: Throwing away a will is not a revocatory act - maybe putting it into the trash compactor is.

Eaton v. Brown - Conditional Will ("I am going on a journey and may not return. If I do not, I leave everything to my adopted son." The testator returned safely from her journey and died some months later.)

HOLD: She was thinking about the possibility of death when she made the will but did not express a condition.??????

In re Estate of Hall - Harmless Error Rule (Jim Hall was married to Betty Lou and he had two daughters (Charlotte and Sandra) from a prior marriage. Jim had a 1984 Wills. Thirteen years later, on June 4, 1997, they met with their attorney, Ross Cannon and discussed a draft "joint will." They scribbled changes and asked Ross if it would be valid if they executed the draft and he notarized it. No one else was available to witness. So they signed it; Ross notarized. They went home and Jim instructed Betty Lou to destroy his 1984 will. Jim died October 23, 1998. Sandra challenges. Betty Lou concedes no witnesses were present at the will's execution. (Couldn't it be argued that she witnessed plus notary?)

HOLD: The Will is valid clear and convincing evidence will. Her testimony: REASONING: no indication he didn't mean for it to be the will, he ripped up the other (revoked it), etc.

Williams v. Towle - Signature (Holographic but unsigned unless you count: "Last Will Etc., or What? Of Homer Eugene Williams" at heading)

HOLD: The court held the will valid. Other cases are contra.

In re Estate of Kuralt - Handwriting/Extrinsic Evidence (Charles Kuralt was married to Suzanne ("Petie"), had two children, and a long-term relationship with Pat Shannon beginning in 1968. May 3, 1989. Holographic Will. Montana land to Pat; mails copy to Pat. May 4, 1994. Formal NYC Will. All to Petie and kids, something like: "I Charles Kuralt, revoking any prior wills and codicils, leave the rest, residue and remainder of my estate to ½ Petie and ½ to the kids." So, if he dies here, he would have expressly revoked his will to Petie. April 9, 1997. Deed. 20-acres to Pat (gifted her the money to purchase it). 90 acres remains. June 18, 1997. Letter. "I'll have the lawyer visit the hospital to be sure you inherit the rest of the place in Montana. If it comes to that. Love, C." Mailed along with two checks: $8000 and $9000.)

HOLD: The letter is a valid holographic codicil. Court allows the letter in as a codicil; the evidence clearly establishes this was his testamentary intent.

In re Estate of Rigsby - Integration (Testator leaves a holographic Will - found with a second page. The first page is clearly a holographic Will. It is signed and starts out: "Inasmuch as I do not have a will, I would like to make..." Two and a half inches of blank space follow the signature. The second contains a list of personal property followed by names; it is folded with but not fastened to the first page. It conflicts in part with the first.)

HOLD: The second page is not integrated with the first. - Simmons: this could just as easily have gone the other way - that the two could be read together and are not inconsistent.

Incorporation by Reference

UPC: Incorporation by reference is permitted where the will manifests such an intent and describes the writing adequately and the writing is already in existence. - You can't incorporate something that doesn't exist yet (except for one type of instrument to be discussed later).

Estate of Nielson - Republication (Typewritten 1969 attested will: Residue to mother, otherwise Salvation Army, Braille Club, San Diego ARC and the National Anti-Vivesection Society. Later crossed-out and wrote between the lines: "Bulk of Estate - 1. Shrine Hopsital $10,000; 2. Soc'y for Prevention of Cruelty to Animals." "Revised by Lloyd M. Nielson 11/29/74" + date + initials. Uncle claims that delineations and cross-throughs revoked will and were not a valid codicil since no handwriting expert testified and not "entirely in testator's handwriting" as required by California statute since reference to typewritten portions was necessary. Court had been able to compare the decedent's handwriting with the script on the will.)

HOLD: Valid holographic codicil which republished will as modified.

Minton v. Minton - Testamentary Intent vs. Intended Disposition (Testator had a formal 1999 will and in 2003 wrote a 2-page note to two of his friends: "If anything happens to me I want to give Adrian $10,000, etc." Testator died in 2007)

HOLD: Valid holographic even though it references a future intention. Folks aren't that careful with their verb tenses, we know that.

In re Pavlinko's Estate - Ad Hoc Relief from Strict Compliance - switched wills case 1 (surviving spouse dies) (Vasil and Helen Pavlinko spoke Little Russian (Carpathian) and little English. In 1949, they went to their Carpathian-fluent (and unnamed) lawyer who drew up their wills: all to spouse otherwise Helen's brother Elias Martin. The wills were switched. In 1951, Helen dies. There's no probate. In 1957, Vasil dies.)

HOLD: Vasil's Will is invalid (note: they probated the Will signed by decedent Vasil but titled Helen's). "In order to decide in favor of the residuary legatee, almost the entire will would have to be rewritten." To honor the will we'd be opening the door to countless fraudulent claims which the Wills Act successfully bars. NOTE: Must be signed by the testator. In these cases because the wills were signed by the wrong person, that is NOT signed by the testator. - To make the wills valid, they would need to essentially rewrite the whole thing.

Estate of Martin - Conditional Will (In 1998, Leslie Martin talked to her friend Marilyn prior to a trip to Rapid City, wondering if she could make a handwritten will. Marilyn said she thought so. Leslie wrote:"If anything should happen to me on this trip to Rapid City. Everything I own is to go to [daughter] Ann..." She died in 2000 (2 years later).

HOLD: Will valid as a non-conditional holographic will.

In re Estate of Gonzalez - Preprinted Will Forms (Fermin Gonzalez was planning to take a trip to Florida; he filled in the blanks of a will form leaving his estate to three of his five children and signed it. (He had a second form he intended to complete more neatly. Three family members signed the second form as witnesses.) He died later that same month.)

HOLDING. Valid holographic will as the preprinted portions are incorporated, citing UPC comments indicating that immaterial parts (e.g., date, introductory wording) may be printed. Other courts read only the holographic portions and see if it makes sense that way.

More on DRR

If a testator undertakes to revoke his will because of a mistaken assumption (of law or fact - such as that a new will is valid when it isn't), the revocation is ineffective. * Look for an alternative plan of disposition (e.g., a will) which fails or a mistake. * DRR is when you're thinking - "oooh! maybe she shouldn't have revoked that."

Notarized Wills

In new UPC but not SD All states have requirements that include having at least two witnesses and signing your will yourself. Some states allow you to notarize your will to make it "self-proving," which moves it through probate faster. However, as of December 2010, only Louisiana requires a will to be notarized.

Noncupative (oral) wills

In special circumstances, but not in SD

Revocatory Acts on Copies

Not valid but equity may impose a constructive trust - especially, say, if the devisee wrongfully refuses to deliver the original to the testator.

UPC Revocation

Revocation by (a) subsequent Will/Codicil (expressly or by inconsistency); or (b) "revocatory act on the will" in testator's presence - burning, tearing, canceling, obliterating, destroying - the will or part thereof whether or not it touches any words on the will (formal act + intent to revoke).

Revocation in all states

Revocation of a will permitted by (a) subsequent Will/Codicil revoking expressly *OR* by inconsistency; *and* (b) by a physical act on the Will by testator *OR* someone else at the testator's direction and in their presence.

"Presence" in SD and UPC

SD: Presence requirement retained. But not "at the same time." UPC: Presence requirement rejected except for a signature by another at the testator's direction.

SDCL on Witnesses

SDCL 29A-2-502: "signed [by witnesses] in the conscious presence of the testator [by witnesses] who, in the conscious presence of the testator, witnessed either the signing of the will, or the testator's acknowledgement of that signature" Two components to this: 1. Witness needs to sign when the testator is there 2. They need to have witnessed the testator signing OR the testator acknowledging that is their signature

Birth of Children after Execution of a Will

The birth of a child does not revoke a will. But a pretermitted child shares in the shares of other children under UPC - E.g., Odin's Will: "To my child Loki I leave $10,000." Then Thor is born. Thor and Loki each receive $5,000. - E.g., Odin's Will: "To my child Loki I leave 1/3 of my estate." Then Thor is born. Thor and Loki each receive 1/6. If a testator had not child when the will was made, the child receives an intestate share unless (1) the will devised all or substantially all to the child's parent; (2) and the parent survived; and (3) the parent is entitled to take under the will E.g. Odin's will (made before he had Thor or Loki): "all my estate to Frigga." If Frigga is Thor's parent, she survives Odin, and is entitled to take then Thor is not permitted. Note: Frigga is not Thor's mother, Jord is.

Attestation Clauses

The witnesses recite what happened; this is optional. If it's sworn (i.e., before a notary) then it becomes self-proving.

Harmless Error Rule and Revocations

There's no harmless error rule for revocations by physical act, just writings intended to be wills or codicils.

Strict Compliance

Traditional law: strict compliance with the wills act is required

Revocation and "Presence" under UPC

UPC does require revocatory act in the testator's "conscious presence."

Acts of Independent Significance (Another doctrine permitting extrinsic evidence to identify beneficiaries or property)

UPC: A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will (e.g., the execution or revocation of another person's will).

Subsequent Writings and Tangible Personal Property

UPC: A will may refer to a list to dispose of items of tangible personal property not otherwise disposed of by will and other than money. Must be signed and describe items and devisees. - It may be prepared before or after the will and may be altered after.

Marriage After Execution of a Will: Premarital Wills

Under some states' law, marriage revokes a premarital will. Under the UPC and SD, marriage does not revoke a premarital will - only divorce and slaying (or actually revoking) revokes. But the pretermitted spouse may claim an intestate share - unless: (1) it appears from the will that the omission was intentional (e.g., "I may marry Mary Jane Watson one day, but even if I do, I omit her and leave my estate to my dear Aunt May.") (2) or the spouse is provided for by the will (e.g., "If I do marry Mary Jane Watson, I leave her my Spider-Man costume and $5,000 only, rest to Aunt May") or by a will substitute (e.g., a life insurance policy). And if Mary Jane is still unhappy, she can also claim an elective share.

Dependent Relative Revocation (DRR)

When the testator undertakes to revoke her will because of a mistaken assumption of law or fact, the revocation is ineffective. DRR disregards an otherwise valid will revocation. Example: Testator makes a valid will. Testator makes an invalid new will (e.g. interested witness in an interested witness state). Testator physically revokes first will, mistakenly assuming that the new will is valid. DRR: Probate the destroyed will.

In re Kimmel's Estate - Discerning Testamentary Intent (Letter dated and mailed by Harry Kimmell to 2 of his 7 children, George Darl and Irwin, the morning of his death: "I have some very valuable papers I want you to keep fore me so if enny thing happens all the scock money in the 3 Bank liberty lones Post office stamps and my home on Horner St goes to George Darl & Irwin. Kepp this letter lock it up it may help you out. - Will clost your Truly, Father.")

Will valid. (1) Testamentary character of letter. - The letter's informality is a factor but not determinative. - "The words "if enny thing happens," condition the gift, they exactly state what is expressed in or must be implied from every will." - The decedent had been sick when he wrote the letter. (2) "Father" = signature. - That's the way he signed all letters. - He mailed the letter; it was treated by him as a finished document.

Partial Revocation by Physical Act

You can partly revoke a will by a codicil (e.g., "I revoke Article 3") but can you partly revoke a will by a revocatory act (e.g., crossing out Article 3)? - UPC 2-507 (and SD) A will may be revoked by physical act "or part" thereof. (Not all states agree.)