Wills, Trusts, & Estates Final Exam

What are some ways to avoid internal integration problems?

(1) testator and witnesses initial each page; (2) handwriting is in ink other than black so photocopies can be used to discern alterations; (3) pages are securely fastened together; (4) pages are numbered using: "Page X of Y" format; (5) avoid blank space: "Article IV(C) ends here; Article V begins on the next page. The space below is intentionally left blank."; (6) pages do not conclude with a sentence, i.e., can be removed.

Revival - if Will #2 wholly revokes Will #1, the revocation of Will #2 by a revocatory act . . .

does not revive Will #1, UNLESS the proponent of Will #1 shows that the decedent intended the revocation of Will #2 to revive Will #1.

Revival - if Will #2 only revoked Will #1 in part, then the revocation of Will #2 by a revocatory act . . .

does revive the rest of Will #1, UNLESS the party arguing against revival shows that the decedent did not intend the revocation of Will #2 to revive those parts of 1 revoked by 2.

In re Estate of Alburn (W.I. 1963)

Failed Revival of Will #1 + DRR Decedent moved to and executed Will #2, revoking Will #1. She later moved back, destroyed Will #2, and told people she wanted her property to pass under Will #1. Court held that revival of Will #1 failed because it was not reexecuted but applied DRR to allow Will #2 to probate. Note - Under the UPC, Will #1 is revived as long as the testator intends to revive it, but the key to establishing testator's intent is how the testator revoked Will #2. Here, intent was shown by the decedent ripping up Will #2 and telling people she wanted her estate to pass through Will #1.

Thompson v. Royal (V.A. 1934)

Failed Revocatory Act Testator told her attorney she wanted to revoke her will. The attorney suggested she keep the will as a memoranda and then in testator's presence wrote on the back of the will's cover page: "This will null and void." Testator signed the notation. The court held that the writing did not qualify as revocation. Defacing a will in an effort to revoke it must be done in a meaningful way—i.e., not on the back of a page where no one would see it. Revocation by Writing - Notation was not a will because it was not witnessed and not holographic because the material provisions were not in the testatrix's handwriting. Revocation by Act - The handwriting did not touch any of the written portions of the will as required by the traditional common law approach. Under the UPC, the will would have been revoked because a physical act of revocation need not "touch the words."

In re Estate of Stoker (C.A. 2011)

Harmless Error of Revocation by Writing Decedent peed on his old will and had one of his friends handwrite a new one as he dictated its terms. The document failed as an attested will because it was not witnessed and failed as a holographic will because it was not in the testator's handwriting. However, court applied the Harmless Error Rule and found there was clear and convincing evidence that the he intended the document to be a valid will revoking his prior will.

What kinds of physical acts taken on a will are satisfactory for revocation?

If done by the testator or in their conscious presence: - tearing the will's pages - using marker to cross out the will - burning the will - writing words such a "void" across the top of the will

What issue does a purging statute solve?

If one of the two witnesses to a will takes under the will, the witness has a conflict of interest. "Purged" takers do not receive the bequest, except for the part that they would have under intestacy. This eliminates a beneficiary's financial incentive to falsely testify in favor of probating the decedent's will. Note - There is no purging statute in the UPC.

When a codicil is revoked,

the underlying will remains unaffected.

In re Kimmel's Estate (P.A. 1924)

Nearly-illiterate father wrote confusing letter to his children discussing irrelevant matters, but also indicated his desire for how his assets are to be disposed of at death. The court held the document qualified as a holographic will. The testator's intent was made clear through this direction to "lock up" the letter, which was followed by his signature ("Father") at the end.

What are the 4 functions of wills formalities?

(1) Evidentiary Function - Supply satisfactory evidence to the court that this is testator's will. (2) Ritual/Cautionary Function - Ceremony to impress upon the testator the significance of his statements. (3) Protective Function - Safeguards testator's intent. (4) Channeling Function - Standardization of form simplifies administration.

What are the 3 ways a will or codicil may be revoked?

(1) Revocation by Operation of Law (2) Revocation by Physical Act (3) Revocation by Subsequent Writing

What are the 2 curative doctrines for wills?

(1) Substantial Compliance (2) Harmless Error

What is the capacity to revoke?

(1) Testator's destruction of a will while incompetent is not valid. (2) Duress also vitiates testator's capacity to revoke a will.

What 3 requirements must a will satisfy?

(1) in writing (2) signed by the testator (3) attested to by witnesses

What requirements does the UPC impose on a will?

(1) in writing (2) signed by the testator (3) either (a) signed by 2 witnesses within a reasonable time; or (b) acknowledged by the testator before a notary (or sometimes a lawyer).

What are some ways to avoid external integration problems?

(1) testamentary instruments should state the date of execution so the temporal order is easy to determine; (2) should execute an entirely new will instead of a codicil; and (3) a will revoked by a subsequent writing should also be revoked by physical act.

Under the UPC, who may witness a will?

(a) An individual generally competent to be a witness may act as a witness to a will. (b) The signing of a will by an interested witness does not invalidate the will or any provision of it. Note - This is in contrast to states with a purging statute.

When will a court presume a testator's will has been revoked?

(a) When will cannot be found after testator's death (but last seen with testator), presumption of revocation arises. (b) When will is found mutilated after testator's death (but last seen with testator), presumption of revocation arises.

To what 4 testamentary documents or functions can the harmless error rule be applied?

(a) the decedent's will, (b) a partial or complete revocation of the will, (c) an addition to or an alteration of the will, or (d) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.

How is a codicil executed?

A codicil must be executed with the requisite Wills Act formalities.

What is a holographic will?

A holographic will is written by the testator's hand, dated, and signed by the testator; it need not be attested to by witnesses nor notarized.

How is a posthumously born child treated under the law of intestacy?

A posthumous child is conceived prior, but born after, their father's death. The UPC created a rebuttable presumption that a child born to a woman during her spouse's lifetime or within 300 days after his death is a child of that spouse.

Under the UPC, what is a self-proving clause?

A self-proving clause recites that there was due execution of the will and carries the same power as a deposition—it is seen in court as the sworn testimony of the undersigned individual. A self-proving clause removes the hassle of requiring the witnesses to a will to testify in probate court. This is particularly useful when the parties have moved away.

What is a codicil?

A subsequent will that does not revoke the prior will but only amends or partially revokes the prior will.

When is a will no longer revokable?

A will is said to be ambulatory, meaning it is subject to amendment or revocation at any time during the testator's life. Only upon his death does the the will become irrevocable.

What is revocation by subsequent writing?

A will or any part thereof is revoke by executing a subsequent will that revokes the previous will or part expressly OR by inconsistency.

What is the conscious presence test in will attestation?

A witness is in the presence of the testator if the testator, through site, hearing, or general consciousness of events, comprehends that the witness is in the act of signing. This is the UPC approach. The test is of mental apprehension and is a much more liberal approach.

Who takes after the spouses share is set aside?

After the spouse has received their portion of the estate, the children and descendants of deceased children take the remainder of the decedent's property.

Hall v. Vallandingham (M.D. 1988)

Adopted children lose all rights of inheritance from their parents and from their natural collateral or lineal relatives. Note - This is no longer the case under the UPC.

Under Modern Per Stirpes, where does allocation of the decedent's estate begin?

Allocation begins at the first generation that has living issue. The portion of the estate to be provided to an heir is not determined until there is a generation with at least one member alive.

How are adopted children treated under the law of intestacy?

An adopted child may only inherit from the adopted parents, not the biological parents. HOWEVER, an adopted stepchild can inherit from the adopted stepparent and the biological parents if the adoption: (1) was by the spouse of a parent before the adoption; (2) was by a relative or the spouse or surviving spouse of a relative of a parent before the adoption; or (3) occurred after the death of a parent before the adoption.

What is the effect of an advancement under the law of intestacy?

An advancement is a lifetime gift by the decedent to a child used as a credit against that child's intestate share. Common Law - Any lifetime gift was presumptively an advancement. UPC - A lifetime gift is an advancement ONLY if: (1) the decedent declared in a contemporaneous writing; or (2) the heir acknowledged in a writing that the transfer was: (a) an advancement; or (b) to be taken into account in recipient's inheritance.

Under the UPC, what is an attestation clause?

An attestation clause is a will provision signed by the attesting witnesses and raises a rebuttable presumption that the events recited in the clause occurred. Usually they read out the necessary elements to witness a will such as that they were present, at the signing, and that the testator seemed to be of sound mind.

May an attested will be valid, even if the witnesses do not observe the testator signing the will?

An attested will may be valid, even if the witnesses do not observe the testator signing it. If the witnesses do not observe the testator signing the will, the testator must acknowledge the signature as his own in front of the witnesses.

What is the slayer rule?

An individual who feloniously and intentionally kills the decedent forfeits all right to succeed to the decedent's estate. Note - Killing must be both felonious and intentional—i.e., not negligent homicide. Courts often pass the slayer's inherited property to the next person in line to inherit, but in the form of a constructive trust (UPC method).

Does the order of signing a will affect its validity?

Because the witnesses are only there for the testator's signature or acknowledgement, there appears to be a logical order. If the witnesses are there for the testator's acknowledgment, then they must see him sign the will. But if the witnesses sign the will in the same contemporaneous transaction, the order is of no import. Traditional Approach - A number of courts construe this order of performance as mandatory. Modern Trend - Witnesses may sign the will before the testator signs or acknowledges, as long as all the parties sign the will as part of one ceremony during which no one leaves the room. UPC Argument - The UPC requires witnesses to sign "after" witnessing the testator perform, but if the jurisdiction adopted the UPC's Harmless Error Doctrine, clear and convincing evidence can be used to argue that the decedent intended the document to be his will, rendering the signing order irrelevant

Taylor v. Holt (T.N. 2003)

Broad Definition of Signature Godfrey drafted his will by computer, leaving his entire estate to his girlfriend. He used a different cursive font to sign the will, and then later had it notarized. Deceased used his computer to affix a computer-generated signature to the will. Signature is a mark intended to authenticate a record.

How can you avoid the disposition of property through the laws of intestacy?

By writing a will.

Matter of Ryan (N.Y. 2021)

Testator dying of COVID had will brought to him in hospital by social worker. Court upheld the will and permitted it to probate.

In re Groffman (U.K. 1969)

Testator signed his will at friend's home, but neither him nor his witnesses signed in the presence of each other. Court found the resulting will invalid for want of valid attestation.

Stephens v. Casdorph (W.V. 1998)

Testator took his will to a bank at which it was to be witnessed but the attesting bank employees did not see him sign the will. The court applied strict compliance and invalidated the will.

DRR operation example: S executes Will #1 leaving the entirety of her estate to N. S later executes Will #2, in which she leaves the entirety of her estate to J. S destroys Will #1 thinking Will #2 is valid, but after she dies, it is discovered that she forgot to sign Will #2.

DRR allows the court to disregard the revocatory act of Will #1 and admit it to probate.

LaCroix v. Senecal (C.T. 1953)

DRR by Writing Decedent sought to reexecute her old will such that she change a beneficiary's name to his proper name instead of a nickname. At execution, one of the witnesses was another beneficiary's wife, and state law voided the gift to that beneficiary. The court applied DRR—Codicil was disregarded due to mistake of law: the belief that it was valid.

What is the doctrine of Dependent Relative Revocation

DRR is an equity type doctrine allowing a court to disregard a testator's revocation if there is an alternative plan of disposition that fails, or (2) if the mistake is recited in the terms of the revoking instrument or, possibly, is established by clear and convincing evidence.

What is the intent to revoke?

Destruction of the will has to be done with the intent to destroy; it cannot be an accident.

What is the effect of disclaimer?

Disclaimer occurs where an heir or devisee declines to take property, thereby electing to be treated as having predeceased the decedent. Upon disclaimer, the estate will pass following the will's instructions. If there is no will, the disclaimant is treated as having predeceased the decedent. Disclaiming one's share in an estate will not suffice to avoid a federal tax lien. Drye v. U.S. (1999). Note - In a Per Capita at Each Generation system, the UPC does NOT treat the disclaimant as having predeceased the decedent when determining if there is a person alive at the same generation. This prevents a disclaimant's descendants from being disproportionately enriched.

Under English Per Stirpes, where does allocation of the decedent's estate begin?

Disposition of the decedent's property begins at the generation closest to the decedent, regardless of whether there are any surviving individuals in that generation. Unless otherwise specified, when the term "per stirpes" is used, this is the operative model.

Under Per Capita at Each Generation (Per Stirpes), where does allocation of the decedent's estate begin?

Divide equally at the first generation that has living issue, but then pool remaining shares before dividing them at the next generation.

In re Estate of Hall (M.T. 2002)

Harmless Error Hall's attorney told him and his wife they could properly execute the will by signing it in the attorney's office, despite it not being in its final form because of markings for revisions. The will was admitted to probable because it was clear Hall intended it to serve as his final will. Here, the court looks only to testator's intent.

In re Probate of Will and Codicil of Macool (N.J. 2010)

Harmless Error Macool passed away before the final draft of her will could be executed, leaving only the notes she provided to her attorney. The proponent of a writing as a will must prove the testator saw and assented to the document in its final form for it to be a valid will. Here, testator never actually reviewed the will.

In re Estate of Gonzalez (M.E. 2004)

Holograph Accepted Decedent purchased a pre-printed form will, filled in the blanks giving his estate to three of his five children, and then signed the form will. He showed the will to his brother and his brother's wife, expressing his intent to neatly rewrite it on a second pre-printed form. Following the material provisions approach, the court admitted the will to probate as a valid holographic will. The court concluded that the printed words were incorporated by reference and should be considered when analyzing whether the document has the necessary testamentary intent. Under the UPC approach, there is no doubt the commercially printed form will in Gonzalez expresses testamentary intent and would be probated as a valid holographic will.

In re Estate of Kuralt (M.T. 2000)

Holograph Accepted Kuralt was married to Petie, but he also had a long-term relationship with Pat. As he died in the hospital, Kuralt wrote and signed by hand a letter to Pat stating, "I'll have the lawyer visit the hospital to be sure you inherit the rest of the place in MT if it comes to that." No lawyer came before he died. The court ruled that there was sufficient evidence to find the document was a holographic codicil to his will. It emphasized that the bedrock principle was to honor testator's intent, and that Kuralt's underlying word "inherit" indicated his intent to make a testamentary transfer of the property.

Estate of Southworth

Holograph Rejected Southworth signed a donor card and checked a box, which stated, "I am not taking action now but my intent is," and filling in the blank with the handwriting, "My entire estate is to be left to" the charity. Court held that the card was not drafted to serve as a will, so it must fail for want of testamentary intent that the writing serve as a last will and testament.

Can a holographic codicil be incorporated into an attested will or vice versa?

Holographic codicils to attested wills are valid, and attested codicils to holographic wills are valid. Handwritten amendments to a holographic will constitute a valid holographic codicil, even if the interlineations do not qualify as a valid holographic will in their own right.

Example language of express revocation

I, [Testator], a resident of [City], [State], [County], declare that this is my last will and I hereby revoke all prior wills and codicils.

What evidence of testamentary intent is required for a holographic will to be valid?

In jurisdictions requiring that the material provisions be in the testator's handwriting, testamentary intent must be discernible from the handwritten portions of the document. This issue is most common with commercially printed wills requiring only that testator fill in the blanks. Under a strict compliance approach, the court "whites out" any material not in the testator's handwriting and assesses what's left to see if testamentary intent can be established. Under the UPC, testamentary intent can be derived from the handwritten material, the non-handwritten provisions, or other extrinsic evidence.

How are adult adoptions treated under the law of intestacy?

Most intestacy statutes draw no distinction between the adoption of a minor and the adoption of an adult. In some states, such as New York, one is not permitted to adopt their lover, while other states, like Delaware, permit this action. To gain standing, a collateral relative would need to overturn any adoption by the decedent.

How many signatures are required for a holographic will to be valid?

Only 1 signature is required—the testator's. Because of this deviation form typical wills, a signature not found at the end of a holographic will may create doubt that the testator intended his name to be a signature.

Under the UPC, what is the revival of a revoked will?

Revival is the reinstatement of a will that the testator has previously revoked. A testator could trigger revival by reexecuting the old will or by including an express statement in a new will stating the old will is effective again. The court examines evidence such as the circumstances surrounding revocation of Will #1 and any statements Testator made regarding a belief that Will #1 was reinstated.

What is revocation by implication?

Revocation by implication, also known as inconsistent provisions, occurs if the provisions of multiple testamentary instruments conflict, and the provision executed closest to the time of death controls as to the inconsistencies. Any portion of the will that is not inconsistent with the subsequent writings would ordinarily remain effective.

What is the effect had on a codicil when the underlying will is revoked?

Revocation of a will revokes all codicils thereto.

What is the effect had on the underlying will when a codicil is revoked?

Revoking a codicil does not revoke the underlying will.

Bitetzakis v. Bitetzakis (F.L. 2019)

Strict Compliance - in order to properly execute a will, Florida law requires the testator "sign the will at the end," or have it properly signed for him. Testator began signing his will and the stopped at the behest of his wife. The next day, the couple went to a notary, but instead of the will, the testator brought a self-proving affidavit. Court held the decision to stop signing and later bring the affidavit to a notary is evidence he did not believe the partial signature conclusively established his assent.

In re Will of Ferree (N.J. 2003)

Substantial Compliance Will signed and notarized by testator, but it was not attested by two witnesses. Court did not allow substantial compliance to eschew the attestation requirement. Disregarding formalities cannot be done so intentionally.

What different approaches apply to the requirement that a holographic will be handwritten by the testator?

The handwritten requirement decreases the potential for fraud, though jurisdictions are split on the extent to which the testator must write the will's provisions: Entirely - If the jurisdiction requires the will be entirely handwritten, any printing or marks on the document may invalidate the whole will. Material Provisions - Material provisions include those affecting the disposition of testator's property (who gets what), any administrative provisions (appointment of a personal representative/ guardian), and maybe testamentary intent (this document constitutes my last will and testament). UPC Approach - Material provisions. Harmless Error Argument - A holographic will that otherwise would fail for want of handwritten material provisions might be valid if it is signed and there is clear and convincing evidence that the testator intended the document be his will.

When and to what does the law of intestacy apply?

The law of intestacy applies to any portion of a decedent's probate estate that has not been disposed of by a will. An intestate decedent is one said to have died without a will. Their property passes by intestate succession.

Which state's intestacy law applies to the decedent's personal property?

The law of the state where the decedent was domiciled at death.

Which state's intestacy law applies to the decedent's real property?

The law of the state where the decedent's real property is located.

What is the effect of a codicil on the already-existing will?

The prior will is valid to the extent it is not revoked by the codicil.

What is external integration?

The process of establishing the testator's will by piecing together all of the testator's wills, codicils, and other testamentary instruments.

What is internal integration?

The process of making certain the testator's will contains no fewer and no more pages than when the testator executed it.

What is the publication requirement?

The publication requirement is that at some point during a will execution the testator must expressly inform the witnesses that they are signing a will. This is not required in all states.

What is the Simultaneous Death Rule/Uniform Simultaneous Death Act?

The simultaneous death rule provides that a person must, by clear and convincing evidence, survive the decedent by 120 hours (5 days), or else they will be treated having predeceased the decedent. However, this provision does not apply if the estate would otherwise escheat.

What is the line of sight test in will attestation?

The testator does not actually have to watch a witnesses sign the will but must be able to see them were he to look.

What is revocation by physical act?

The testator may revoke a will by destroying it or physically performing some act upon the will that manifests the testator's intent that the will is not to be used to determine at-death disposition. Under the UPC, the physical act taken on the will may be accomplished by another person so long as it is done in the testator's conscious presence and by the testator's direction.

What are the 3 requirements of revocation by physical act?

The testator must have: (1) the capacity to revoke the will; (2) the intent to revoke the will; and (3) performed a satisfactory physical act on the will.

What is revocation by operation of law?

This type of revocation occurs automatically to carry out a presumed intent of the testator. Examples of revocation by operation of law: (1) Testator divorces his spouse, thus revoking all provisions in his will naming the spouse as beneficiary. (2) Testator is married and the new spouse is now entitled to take an intestate share of the testator's estate. (3) Children born after the execution of a parent's will in which they are not mentioned are given a share in parent's estate.

What is integration?

Those pieces of paper (1) physically present at the time of execution (2) that the testator intends to be part of the will constitute the pages of the will.

How might a beneficiary with standing over come a presumption of physical revocation?

To overcome such a presumption, the proponent of the will must show by a preponderance of the evidence that the will was not revoked.

How is a nonmarital child treated under the law of intestacy?

Traditionally, "bastard" children could inherit from neither of their natural parents. Now, however, nonmarital children can inherit from both mother and father, if paternity is established, which can be done though: (1) subsequent marriage of the parents; (2) acknowledgment by the father; (3) adjudication of paternity; and (4) clear and convincing post-mortem proof.

Does the placement of the testator's signature matter?

Typically no. But some require that the testator's signature appear at the end of the will. These jurisdictions will infer that anything appearing after the signature was added after the testator signed the will. Anything appearing after the signature will not be treated as part of the will, unless (1) the harmless-error doctrine applies, and (2) it is shown by clear and convincing evidence that these provisions were meant to be part of the will.

What is the effect of a waiver under the laws of intestacy?

When a person proactively gives up their future inheritance (as opposed to rejecting it once it has come). Waivers typical occur in a premarital/prenuptial agreement.

What is the strict compliance doctrine?

Under strict compliance, even a trivial deviation from the required wills formalities can nullify an otherwise valid will.

What is the substantial compliance doctrine?

Under 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. Key Question - Did the execution of the will substantially comply with the statutory formalities? Modern approach has been to move away from this doctrine toward the harmless error rule.

What is the harmless error rule?

Under the UPC's harmless error rule, the court may excuse noncompliance if there is clear and convincing evidence that the decedent intended the document to be his will. Key Question - Was failure to comply with statutory formalities harmless error? Generally does not apply to wills lacking writing or a signature.

What is an unworthy heir?

Under the UPC, where the highest-ranking heirs to a decedent's estate are their parents, inheritance may barred where there is clear and convincing evidence that the heirs' parental rights could have been terminated for nonsupport, abandonment, abuse, or neglect.

What is representation?

When one of several children has died before a decedent, leaving descendants, the child's descendants represent the child and divide the child's share among themselves.

What is the function of disinheritance by negative will?

Under traditional law, this was not possible. However, the UPC has amended this approach and allows a negative will by way of an express disinheritance provision, which barres the disinherited as if he disclaimed his share.

Shapira v. Union National Bank (OH 1974)

Upheld a will condition requiring son to marry Jewish woman within 7 years of father's death. The condition did not pressure the son into marriage by the reward of money because the 7 year time limit is a reasonable period, which would give the son ample time for fulfillment of the condition without constraint or oppression.

Harrison v. Bird (A.L. 1993)

Valid Presumption of Revocation Decedent and her attorney possessed the original and copy of her will. She called and asked to revoke the will. The attorney in the presence of his secretary ripped up the will and mailed the pieces to decedent. The court held the attorney's destruction was not valid because it was not in decedent's presence, but because the pieces mailed to the her were not found after her death, the Presumptions of Physical Revocation doctrine applied.

In re Estate of Mahoney (V.T. 1996)

Wife killed her husband who died intestate leaving $3,800. She was convicted of manslaughter. Vermont intestacy law typically leaves the residual estate to the spouse, but the court instead gave the residue to the husband's parents.

What is a legacy?

Will provision dispensing of money.

What is a bequest?

Will provision dispensing of personal property.

What is a devise?

Will provision dispensing of real property.

Is a will signed by a notary valid?

Yes—a will is valid if signed by two witnesses or a notary. A single notary can serve the functions underlying the Wills Act formalities (evidentiary, protective, and ritualistic) as well a pair of witnesses can. Some states allow attorneys to serve in this capacity.