§ 6    Overview  [31-32]

 

As you work through this section consider each topic from different angles: a litigator looking back upon existing documents; a planner designing an approach able to withstand future challenges while retaining the flexibility to adapt to unforeseeable change; a public-policy maker sensitive to directions the law may take as it continues to develop.

§ 7    Creation  [32-63]

 

   A.  The Mental Element

 

   1.   Intention

 

As a threshold matter, for a will to be valid, the testator must have had a “testamentary intention” at the time the will was executed. Testamentary intention is commonly an issue when wills are homemade.  See, e.g., In re Estate of Kuralt, 15 P.3d 931 (Mont. 2000) (Language in letter: “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” was intended as an amendment to a will.).

 

   2.   Capacity

 

The capacity element in wills law stems directly from statutory requirements that testators be “of sound mind.” See, e.g., UPC § 2-501.  Capacity can be lacking in either of two senses.

 

a.   Mental Deficiency

 

Mental deficiency concerns the general capacity to make a will. Thus, a testator who has a guardian because he cannot handle his own affairs may still be able to make a will.  See Gilmer v. Brown, 44 S.E.2d 16 (Va. 1947). Though courts use a variety of formulations, they tend to require a testator to:

 

(1) Know the nature and extent of his or her property,

(2) Know which persons would be expected to take the property,

(3) Understand the basics of the plan for disposing of the property,

(4) Understand how the above elements interrelate.

 

If a testator suffers from mental deficiency at the time the will was executed, the whole will is invalid.

 

                     b.   Insane Delusion

 

An insane delusion is a false belief adhered to against reason. Challenges on insane delusion grounds often involve beliefs about family members. See, e.g., In re Honigman’s Will, 168 N.E.2d 676 (N.Y. 1960) (testator thought his wife had been unfaithful).  If that false belief affects provisions of the will, those provisions are invalid. 

 

               3.   Undue Influence

 

A will (or will provision) that is the product of undue influence is invalid. Although courts have struggled to articulate a test for undue influence, they typically focus upon some mix of the following factors:

 

· the testator’s condition

· the opportunity of the influencer to exercise control

· some activity on the part of the influencer

· the effect on the mind of the testator

· the level of secrecy

· whether the influencer was in a confidential relationship

· with the testator

· whether the testator received independent advice

· whether the influencer received an undue benefit

 

See generally 1 Page on Wills §§ 15.1-15.13.

 

Like insane delusion, an undue influence challenge often leaves most of the will alone, invalidating only the tainted provisions. If the influence extends to the whole will, or if the offending gift is so central to the estate plan that the plan collapses without it, the whole will fails.  See, e.g., In re Estate of Marsh, 342 N.W.2d 373 (Neb. 1984).

 

               4.   Fraud

 

Fraud might be either in the inducement, which involves fooling the testator into making or changing will provisions, or in the execution, which involves getting the testator to sign the wrong document. The elements have been stated as follows: “A will is invalid if the testator has been willfully deceived by the beneficiary as to the character or contents of the instrument, or as to extrinsic facts which are material to the disposition and in fact caused it.”  Atkinson on Wills § 56.  Often the fight is about whether the facts are “material.”

 

              

               5.   Planning Considerations

 

                  a.   Structural Elements

 

The estate plan might include any combination of a number of features designed to discourage bringing, or limit the chances of succeeding at, a will contest.

 

i.        No-Contest Clauses

 

A no-contest clause denies benefits to someone who contests a will, but the clause can work only if it is accompanied by a gift to the potential contestants.  Otherwise, they have nothing to lose by bringing the contest.  In most capacity and undue influence cases, if the contest is successful, the no-contest clause will have no effect. It will fail with the will or the other challenged clauses.

 

When contests fail, courts are divided on whether no-contest clauses are a good idea.  See generally Martin D. Begleiter, Anti-Contest Clauses: When You Care Enough to Send the Final Threat, 26 Ariz. St. L.J. 629 (1994).  Many jurisdictions refuse to apply no-contest clauses if there was “probable cause” to bring the contest.  In addition, courts often construe such clauses narrowly.

 

         ii.   Explanations

 

When a testator wants to leave out some family members or reduce their shares, one option is for the testator to explain in the will the reasons for the different treatment. If the testator is equalizing treatment among various takers, as when one child’s gift is reduced to take into account a lifetime gift, this technique may work well. When favoritism of one side of the family is prompted by ill will toward the other side, displaying the family laundry in public may fuel a contest.

 

iii.    Living Probate

 

A few jurisdictions allow wills to be admitted to probate before the death of the testator.  Though the details vary, the basic idea is to allow a testator to give notice to interested parties of an intent to probate the will.  If there are no objections, or if proponents overcome them, the court admits the will to probate. That will, unless it is later revoked, controls distribution of the estate.

                        iv.  Living Trusts and Other Gifts

 

Another way to get property to a favored beneficiary without risking a will contest is to make lifetime gifts, including creating a trust.    Later, a will contest would be irrelevant because the property would not be in the estate.

 

                           v.   Family Law Options

 

In some situations, testators may be able to protect their estate plans by getting married or by adopting an intended beneficiary.

 

         b.  Conduct

 

Working with one eye viewing the elements of mental capacity and undue influence, lawyers can preserve evidence that their clients were acting competently on their own at the time they executed the wills.  If the testator is disinheriting someone for reasons that he would rather keep private, the lawyer could ask the testator to write out an explanation to keep on file for later use. A videotape of the testator explaining the will could be powerful evidence of competency and actual intention.  Because witnesses in these situations are more likely to be called to appear in court, clients should choose witnesses with care. Also, right after the will execution ceremony, lawyers could ask the witnesses to dictate their recollections of the event.  These statements could then be used in later litigation to refresh recollections.

 

         B.  Execution

 

A testator must meet particular formal, statutorily-mandated requirements to create a valid will.  For citations to wills statutes around the country, see Restatement (Third) of Prop. § 3.1, Statutory Note.

 

1.      The Policies

 

Commentators have identified four principal functions of Statutes of Wills:

 

· preserving evidence

· channeling testators to use similar forms, features, and procedures

· requiring a level of formal ceremony

· preventing others from overreaching.

 

Traditionally, courts have strictly construed Statute of Wills requirements. The following comment is typical: “[T]he testator’s intent to execute a valid will is not by itself sufficient to give validity to an instrument not executed in accordance with the statutory requirements.” In re Estate of Weber, 387 P.2d 165, 169 (Kan. 1963). 

 

2.      A Typical “Statute of Wills”

 

a.      In Writing

 

With minor exceptions, wills must be written. They may be handwritten, typed, or printed from a word processor.  Nevada now allows electronic wills. 2001 Nev. Stat. ch. 458.

 

Some states allow oral wills (“nuncupative wills”).  Sometimes called “Soldiers’ and Sailors’ Wills” because they apply only to last-illness gifts (and sometimes are only available to armed services personnel), they may be limited to giving personal property only, or to giving amounts under a stated value.

 

b.      Signed [At the End?]

 

The requirement that the testator sign the will has two aspects. First, there must be some sort of mark on the will. While a formal, complete signature is common, a label of relationship, initials, or even an “X” is acceptable.  Second, the signature must have been intended as an operative, validating act.  See In re Estate of McKellar, 380 So. 2d 1273 (Miss. 1980).

 

The title to this section includes “at the end?” in brackets because that requirement is included in a few states.  Sometimes there are disputes about where the “end” is.

 

c.  By the Testator or Another

 

Virtually all states allow someone else to sign on behalf of the testator. Usually the proxy must sign in the testator’s presence, at his direction.

 

d.   Attested in the Testator’s Presence

 

Unless the state allows so-called “holographic” wills (see § 7, B, 3), wills must be witnessed. Virtually all states require two witnesses.  Commonly, the witnesses must themselves sign “in the presence of” the testator.  Sometimes they must also sign in the presence of each other.  Courts have struggled with what “presence” means. They have generally followed either a “line-of-sight” test or, more commonly, a “conscious presence” approach.  Compare In re Demaris’ Estate, 110 P.2d. 571 (Or. 1941) with Stevens v. Casdorph, 508 S.E.2d 610 (W. Va. 1998).

 

UPC § 2-502 eliminated the presence requirement, except for proxy signatures (where conscious presence is required).  Witnesses must still “witness” something the testator did: the signing itself, an acknowledgment of the signature, or an acknowledgment of the will. Their own signatures, however, need not be affixed in the testator’s presence.  Moreover, the signatures need only be placed on the will within a “reasonable time” after the witnessing took place, even if that is after the testator’s death.

 

e.  By Competent Witnesses

 

Witnesses must be competent in terms of mental ability at the time of the will’s execution.  Many states also say part of being competent is being “disinterested,” in the sense of not taking any gifts under the will. Strictly applied, the rule would invalidate most wills signed by interested witnesses.  Rather than letting the will fail, however, states that follow this rule usually save the will through “purging statutes,” which eliminate the gain to the interested witness.  If the witness would have had a share under an earlier will or the intestate statute, the new gift usually is reduced to the size of the earlier share.  See Estate of Parsons, 63 Cal. Rptr. 70 (Cal. App. 1980).

 

UPC § 2-505(b) has abolished the rule:  “The signing of a will by an interested witness does not invalidate the will or any provision of it.”

 

f.        Some Other Rules

 

Some jurisdictions require witnesses to sign in each other’s presence.  Some require publication, which generally means the testator identifies the document as his will.  Some require the testator to request the witnesses to sign. 

 

g.   Attestation Clauses and Self-Proving Affidavits

 

Neither attestation clauses nor self-proving affidavits are required as part of a valid will, but they are commonly included.  Attestation clauses typically appear after the testator’s signature, but above the witnesses’ signatures. They are phrased from the witnesses’ point of view, attesting that the elements of the local statute have been followed. In most states, they set up a rebuttable presumption that the facts stated in the clause are correct.

 

UPC § 2-504 has popularized self-proving affidavits. The big differences between self-proving affidavits and traditional attestation clauses are: (1) the testator also signs the self-proving affidavit, and (2) the affidavit is notarized. Under the UPC, self-proving affidavits raise a conclusive presumption that the statute’s signature requirements have been met.

 

3.   Holographs

 

Many states allow informal wills called “holographs.” These wills should be viewed as qualifying for recognition under an alternative set of rules. 

 

Most importantly, holographs need not be witnessed.  In return for eliminating the need for witnesses, states require additional elements, mostly aimed at assuring the genuineness of the document.  UPC § 2-502(b) sets these bare-bones requirements: the signature and “material portions” must be in the testator’s handwriting.  More traditional statutes require the document to be “entirely” in the testator’s handwriting and may require a date or some of the elements applicable to attested wills.

 

Because of their minimal requirements, holographic wills can crop up in unlikely places.  See In re Kuralt, 15 P.3d 931 (Mont. 2000) (part of a letter).  Once courts validate these writings, however, they carry the same weight as a document executed with all the trimmings in a law office.

 

4.  Mistake in Execution

 

a.   Traditional Law

 

Orrell v. Cochran, 695 S.W.2d 552 (Tex. 1985), illustrates how courts traditionally have interpreted the elements in their statutes.  A witness signed the will where the testator should have, and the testator only signed in a self-proved affidavit following the will. Because the testator did not sign the will itself, it was denied probate.

 

b.  Substantial Compliance

 

One solution for those frustrated with the tradition of strict interpretation of will statutes’ requirements is to validate a will if there has been “substantial compliance” with the statutory elements.  See In re Will of Ranney, 589 A.2d 1339 (N.J. 1991); Restatement (Second) of Prop. § 31.1 comment g.

 

c.  Excusing Harmless Error

 

UPC § 2-503 provides:  “Although a document or writing added upon a document was not executed in compliance with Section 2-502 [which gives the basic elements], the document or writing is treated as if it had been executed in compliance with that section if the proponent . . . establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent’s will . . . .” The reform is variously called a rule of excusing “harmless error,” “excused noncompliance,” and a “dispensing power.”

 

d.   Working with the Doctrines

 

Note carefully that while substantial compliance focuses on being close, harmless error ignores the traditional statutory elements and focuses directly on whether the testator intended the document to be effective.

 

Here is a series of questions to ask in will-execution situations:

 

·        Does the document strictly comply with the elements for an attested will?

·        If not, does your jurisdiction recognize holographic wills?

·        If so, would the document work as a holograph?

·        If not (or if holographs are not recognized), do the facts show “substantial compliance” with the statutory elements?

·        If not, should the will be allowed under a harmless error approach?

 

   5.  The Execution Ceremony

 

Anyone familiar with courts’ traditionally picky approach to will execution and the ease with which mistakes can happen should approach a will execution ceremony with great care. 

 

§ 8    Components  [63-66]

 

This section centers around the question: What items constitute the will?

 

A.  Integration

 

The doctrine of integration addresses the question in the physical sense:  which pieces of paper were meant to be in the will when it was executed?  Integration is seldom a problem because usually all of the will’s pages are found stapled together, with the signatures at the end.  Occasionally, however, someone will offer a loose pile of papers as a will.  See In re Beale’s Estate, 113 N.W.2d 380 (Wis. 1962).

 

B.  Incorporation by Reference

 

Incorporation by reference is a way to give testamentary effect to a document not present at the execution ceremony.  In most states, the following elements must be met for a document to be incorporated by reference:

 

·        the document being incorporated must exist at the time of the execution ceremony

·        the will must indicate an intention to incorporate

·        the will must refer to the document sufficiently to allow its identification, and

·        the will must say that the document is in existence.

 

Because the last element has proved troublesome in practice, UPC § 2-510 requires only the first three.  See also Restatement (Third) of Prop. § 3.6.

 

Litigation often arises because someone has tried to use the doctrine to include material added after the will’s execution. See Simon v. Grayson, 102 P.2d 1081 (Cal. 1940). 

 

1.   Tangible Personal Property

 

UPC § 2-513 allows wills to refer to a separate, signed writing that identifies who should get particular items of tangible personal property.  The writing can be changed after the will has been executed.

 

§ 9    Revocation [66-77]

 

By a variety of methods, wills can be revoked completely or in part. 

 

         A. By a Writing

 

1.   Formal Requirements

 

A will can be revoked by a later writing that itself meets the elements for creating a will.  See text pages 32-63.  Courts traditionally have taken the same strict approach toward revocation requirements as they have toward will executions, with the same intention-defeating results.  See In re McGill’s Will, 128 N.E. 194 (N.Y. 1920).

 

2.   Express Revocation

 

The most common, and surest, way to revoke a will is by executing a later document that expressly revokes the will.  Documents intended to revoke a will in part are called “codicils.”  

 

3.   Inconsistency

 

If a later will is inconsistent with a prior will, but lacks a clause expressly revoking the prior one, complicated problems can arise.  The second will might impliedly revoke the first to the extent of the inconsistency.  If the inconsistency is too great, however, the second may totally revoke the first.  Courts have struggled with where to draw the line.  See, e.g., Gilbert v. Gilbert, 652 S.W.2d 663 (Ky. Ct. App. 1983).

 

To avoid litigation in these situations, UPC §§ 2-507(b)-(d) establish some presumptions.  The key is whether the later will made a complete disposition of the estate.  If so, it is presumed to have revoked the prior will completely.  If not, it is presumed to have been intended as a supplement to the prior will.  In either case, the presumption can be overcome by clear and convincing evidence.

 

B.     By Physical Act

 

               1.   Specific Acts

 

Testators can also revoke wills by physically altering the document with the intent to revoke it. Typically, statutory lists include words like “tearing,” “burning,” “canceling,” and “obliterating.”  A common source of litigation has been whether particular physical acts were enough to revoke the will in question.  Words like “burning” or “tearing” refer to acts done to the paper;  words like canceling” or “obliterating” refer to the language on the page.  Traditionally, the act must actually interfere with the words.  See Thompson v. Royall, 175 S.E. 748 (Va. 1934).  UPC § 2-507(a)(2) allows revocation by burning, tearing or canceling, even if the act does not touch the words on the will.

 

               2.   Presence

 

The acts must be done by the testator, or in the testator’s presence at his direction.  Resolving whether the testator is in the “presence” of those doing the act involves the same issues as whether witnesses are in the testator’s “presence” at a will’s execution.  See text pages 48-50.

 

               3.   Presumed Revocation and Lost Wills

 

If a will cannot be found, but was last in the testator’s hands, it will be presumed revoked. (If a will has not been revoked, but nonetheless cannot be located, its validity and terms can be proved by other evidence.  See, e.g., Ohio Rev. Code Ann. § 2107.26.)

 

               4.   Partial Revocation

 

Many (but not all) states allow partial revocation by physical act.  Often the question is whether the physical act was intended to revoke the whole will, or only a particular section.

 

A different sort of partial revocation problem arises if there are both a will and a codicil, but only one document is touched.  Imagining the will as a base, with the codicil resting on top, helps the general rules make sense. If the intention is to revoke both documents, destroying the will is usually sufficient. If the intention is unclear, however, the codicil may remain valid if it can sensibly stand alone, but it will fail if it needs the will’s support. Conversely, tearing up a codicil normally leaves the supporting will in place.

 

C.     By Operation of Law

 

Wills may also be revoked (totally or partially) “by operation of law.”  In particular, many states have statutes that revoke all or part of a will if a testator divorces, but does not amend the will to take into account the change. 

 

         D.  Revival

 

“Revival,” identifies the issues surrounding this circumstance:  A testator executes Will I, and then sometime later executes Will II, which revokes Will I.  Changing his mind again, the testator revokes Will II.  The question is whether Will I is good again. 

 

Virtually all states have statutes on the question.  See Restatement (Third) of Property § 4.2, Statutory Note.  There are three basic approaches:

 

·        Because wills speak only at the testator’s death, Will I was never really   revoked by Will II, so Will I still stands as the testator’s “last will.”

·        Because Will I was revoked by Will II, the only way to get back Will I is to re-execute it.

·        If the testator intends to revive Will I at the time of revoking Will II, that intention will prevail. Otherwise, Will I stays revoked.

 

The third option is the most common, but identifying a testator’s intention can be difficult.  See In re Estate of Boysen, 309 N.W.2d 45 (Minn. 1981).

 

UPC § 2-509 distinguishes between complete and partial revocations, and revocations by physical act and those by written instrument:

 

·        If Will II totally revoked Will I and is itself later revoked by physical act, Will I is revived only “if it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations” that the testator intended Will I to be effective.

·        If Will II only partially revoked Will I, the previously revoked parts of Will I are revived, “unless it is evident . . . that the testator did not intend” the revival. 

·        If a third will is involved (revoking all or part of Will II), Will I is revived “to the extent it appears from the terms of the later will that the testator intended” the revival.

 

         E.   Dependent Relative Revocation (Ineffective Revocation)

 

1.   A Remedy for Mistakes

 

“Dependent relative revocation,” known to generations of law students as “DRR” is fundamentally a doctrine for undoing mistaken revocations.  It carries an odd title because courts—traditionally reluctant to correct mistakes involving wills—engage in a fiction.  When they decide to ignore a mistaken revocation, they traditionally pretend that the revocation itself was really dependent on some condition.  When (because of the mistake) the condition is not met, the courts may then presume that the mistaken revocation never really happened in the first place.  Because there has been no revocation, the will in question stands.

 

2.  An Example

 

Suppose Hans Schmidt wanted to redo his will.  At the execution ceremony for the new will, Hans somehow managed not to sign it.  Wrongly believing the new will to be effective, he tore up the old one.  When the mistake is discovered after Hans’ death, a court unable to probate the new will (because there is no signature) might well use DRR to ignore the revocation of the old will.  In theory, Hans’ revocation of the old will was dependent upon the new will being effective; since the new will fails, the old will was never revoked when Hans tore it up.

 

3.  A Consolation Prize

 

The doctrine does not give Hans what he really wanted, and thought he had: the new will.  Rather, he gets a consolation prize: the old will he thought he had revoked.  Most courts look at the circumstances, compare the various wills and the intestate statute, and then choose what they believe the testator would have done had the testator known what hindsight has revealed.

 

4.  A Warning

 

Students sometimes see DRR cropping up everywhere.  As a device for keeping DRR under control, treat every revocation separately and ask, “Did this happen by mistake?”  If not, ignore DRR. 

 

 

F.      The Ethics of Safeguarding Wills

 

Clients can lose wills, mangle them, “correct” them, use them for scratch paper. In response, many lawyers have kept the will for the client.  That way it will be protected from harm and easily available when needed.  Not so coincidentally, later updating and, most lucratively, the ultimate probating, are likely to be handled by the law office where the will has been stored.  Because of the conflict of interest, some have criticized this approach.  See State v. Gulbankian, 196 N.W.2d 733 (Wis. 1972). 

 

§ 10 Contracts Regarding Wills  [77-80]

 

Contracts to make -- or not make -- or to revoke -- or not revoke -- wills do not change wills law.  Wills can still be made or revoked, despite the promises.  But the contracts do affect how property is ultimately distributed.  A common remedy will be to create a constructive trust in favor of the promisee and enforce it against estate assets.  As a practical matter, the promisee takes the property as a creditor, before will beneficiaries or intestate heirs.

 

To discourage litigation about whether there was such a contract, UPC § 2-514 requires contracts concerning succession to be in writing or, at the very least, to be referred to in a will and then proved by extrinsic evidence.

 

Questions about whether there has been an agreement not to revoke a will generally arise between spouses who have children from prior marriages and who execute wills with reciprocal terms.  See, e.g., Junot v. Estate of Gilliam, 759 S.W.2d 654 (Tenn. 1988).  Even if valid, these contracts are notorious litigation-breeders.  In virtually all blended-family situations, a trust will better protect the interests of all the survivors.