Today’s Class

1. Today’s Class • Revocation of wills or of specific devises in a will • What if you change your mind about your will? How can you revoke it? • What if you revoke your will by writing a new will, and the new will is invalid? • Components of a will • When can we look outside the will for testator intent? • Contracts relating to wills • Are promises to provide a bequest enforceable? • Are promises not to revoke a testamentary bequest enforceable?

2. Answers to previous questions • Disclaimer • Generally can wholly or partially disclaim • IRS limits partial disclaimers for reversionary interests (income from an asset to A for life, then to B for life, with remainder to A’s estate) • Probating defectively executed will • Generally can probate in absence of challenge if testimony shows that will reflects testator intent • In many cases (e.g., Homer Miller’s will), the defects will not be apparent from looking at the will • In cases like Ferree or Ranney, the defect is trivial

3. UPC §2-507: Revocation of Wills • (a) A will or any part thereof is revoked: • by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or • by performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator’s conscious presence and by the testator’s direction.

4. Problem: Revocation by inconsistency T executes a will that gives her diamond ring to B and her car to C. The codicil revokes in part the bequest to A by inconsistency 2003 2008 2009 Hypo (a): T destroys the 2008 codicil. What result? T executes a will giving all her property to A. A takes everything Codicil also is revoked Hypo (b): T destroys the 2003 will. What result?

5. Revocation of Wills • We’ve seen that I can revoke my will by performing a revocatory act, but that principle is not very useful—it’s a circular statement • What counts as a revocatory act? • If I shred my will or if I burn it, that’s a revocatory act • But what if I do something short of a shredding or burning my will? • Or what if I shred or burn my copy, and my attorney has the original for safekeeping?

6. Harrison v. Bird Harrison v. Birdp. 287 Speer instructed her attorney by phone to revoke her will. The attorney tore the will into four pieces and sent the pieces along with a letter stating that the will was revoked to Speer. Was this a revocatory act? Nov. 1989 Sept. 1991 Mar. 1991 Daisy Speer executed duplicate wills naming K. Harrison as the main beneficiary. [A duplicate will is signed and witnessed like the original. It’s not a copy, so it can be probated.] Speer dies, the letter from the attorney is found but not the pieces of the will. Should the court probate the duplicate, or proceed through intestacy?

7. Did Speer revoke her will? • It wasn’t properly revoked by the attorney • However, a presumption of revocation is created if the evidence establishes that the testator had possession of the will before her death and the will is not found among the testator’s personal effects (p. 288). • If the testator destroys the version of the will in her possession, all other copies of the will are deemed revoked as well.

8. Did Speer revoke her will? • Note the last paragraph of the opinion rejecting the beneficiary’s argument that the presumption of revocation should not arise. Here’s the argument of the beneficiary: • Daisy thought that her will had been revoked by her attorney. Accordingly, when she burned or threw out the pieces, it wasn’t a valid revocation because she did not have an intent to revoke the will—she already thought it had been revoked. • Not surprisingly, the court rejects this argument. • As this case indicates, it’s not a good idea to have duplicate originals. Better to have photocopies clearly marked as COPY.

9. Questions, p. 289 If the four pieces had been found in her possession, the presumption of destruction would not apply, and the will would be probated. And yes, the lawyer would be liable for malpractice to Daisy’s heirs (or a court might impose a constructive trust on the beneficiary of the will). • What if the torn pieces were found in a file marked “revoked will?” • No valid revocation under UPC 2-507, and no presumption because they were in her possession. • If you’re in a harmless error state, UPC 2-503 would provide for a valid revocation (whether or not there was a marked file—possession of the torn pieces would provide sufficient evidence of revocation). • What if she instructed her attorney to destroy the will while in the lawyer’s office but left before the attorney tore up the will? • No revocation under UPC 2-507; revocation under UPC 2-503 if clear and convincing evidence introduced in court.

10. Questions, p. 289 How do you rebut the presumption of revocation? It’s not enough just to say that the intestate heirs had a motive not to find the will. You need something more. • In Turner case, there was a disinterested witness who saw the will on the day of the testator’s death, and there were disinherited siblings with access to the testator’s house immediately after the death. • In Pallister, there was a relative who would have benefited from revocation with access to the testator’s house and safe deposit box and who had complained about being disinherited, and a testator who kept careful records about estate planning and who expressed affection for the will’s beneficiaries. • Remember—the presumption that a lost will was destroyed is triggered only when the will was last in possession of the testator.

11. Proving a lost will • “If a will cannot be located after death, but the trier of fact finds that it was not revoked, the will is entitled to probate if its due execution and contents can be proved.” • “Commonly in such cases, the will is proved by evidence of a law-office or other copy, or from the drafter’s notes and recollection. If its full contents cannot be proved, the will is entitled to probate to the extent that its contents can be proved.” • Restatement (Third) of Property: Wills and Other Donative Transfers §4.1, cmt. k (1999).

12. Thompson v. Royallp. 290 Thompson v. Royall Kroll wanted to destroy the will and codicil; her lawyer convinced her to keep them; he wrote “null and void” on the manuscript cover (will) and back (codicil) and she signed before two witnesses who did not sign. Kroll signed a will before 3 attesting witnesses; she gave the instrument to the executor for safe-keeping. Sept. 4, 1932 Sept. 15, 1932 Sept. 19, 1932 Oct. 2, 1932 Kroll signed a codicil before two attesting witnesses; she gave the instrument to the attorney who prepared both documents. Kroll died.

13. Thompson • Was Mrs. Kroll’s attempt at revocation valid as the execution of a new will? • No. The two witnesses failed to sign • Was Mrs. Kroll’s attempt at revocation valid as the execution of a holographic will? • No. The statements of revocation were in the lawyer’s handwriting rather than that of Mrs. Kroll • Was there a valid physical act of revocation? • No. There was no erasing or other defacing of the words on the will

14. Revocatory act under UPC • A revocatory act includes includes “burning, tearing, canceling, obliterating, or destroying the will or any part of it. A burning, tearing, or canceling is a ‘revocatory act. . .’ whether or not the burn, tear, or cancellation touched any of the words on the will . . . .” • UPC § 2-507(a)(2) • This provision is consistent with case law on burning or tearing, but inconsistent with most of the cases on canceling • For cases showing flexibility on cancellation, see note 2, page 293

15. Revocatory act under the harmless error doctrine • Although a document or writing added upon a document was • not executed in compliance with Section 2-502, the document • or writing is treated as if it had been executed in compliance • with that section if the proponent of the document or writing • establishes by clear and convincing evidence that the • decedent intended the document or writing to constitute • (i) the decedent’s will, • (ii) a partial or complete revocation of the will, • (iii) an addition to or an alteration of the will, or • (iv) a partial or complete revival of his [or her] formerly • revoked will or of a formerly revoked portion of the • will. • UPC § 2-503

16. Revocation in IndianaInd. Code § 29-1-5-6 • No will in writing, nor any part thereof, except as in this article provided, shall be revoked • unless the testator, or some other person in his presence and by his direction, with intent to revoke, shall destroy or mutilate the same; or • such testator shall execute other writing for that purpose, signed, subscribed and attested as required in [Ind. Code § 29-1-5-3 or Ind. Code § 29-1-5-3.1 (self-proving clause)] • A will can be revoked in part only by the execution of a writing as herein provided.

17. T executes a will, and the residue goes to four named relatives. T dies, and the will is found with one of the names marked out in pencil, p.294 • Is it a valid partial revocation under UPC § 2-507? • Yes, if there is circumstantial evidence of intent (e.g., will was in T’s possession when he died) (but partial revocations in Indiana require an attested writing) • What about the fact that the marking out was in pencil? • Pencil is okay, but court may conclude that it was tentative rather than final. • What result in a state that does not permit partial revocation by physical act? • The four named relatives divide the residue. If the fourth name cannot be discerned, the three remaining relatives divide the residue. • The crossing out is valid even though there is no new signature. The authenticity comes from the document being in the testator’s own handwriting.

18. Dependent relative revocation • If a revocation is presumed to depend on an understanding of law or fact that is mistaken, the revocation is ineffective if the testator would not have revoked the will in the absence of the mistaken understanding. • T executes a new will and revokes a prior will. The new will turns out to be invalid. • A court will undo the revocation of the prior will if it concludes that T would not have revoked the prior will had T known the new will was invalid.

19. LaCroix v. Senecalp. 295 LaCroix v. Senecal Mar. 26, 1951 Apr. 10, 1951 Apr. 19, 1951 Dupre leaves will. Dupre dies. Dupre adds codicil. Residue & Remainder Residue & Remainder The codicil failed. Is the original item five renewed? (Aurea’s husband serves as a witness) One-halfto my nephew, Nelson Lamoth of Taftville, Connecticut, to be his absolutely; The other one-half to Aurea Senecal of 200 Providence Street, Putnam, Connecticut, to be hers absolutely. One-half to my nephew Marcisse Lamoth of Taftville, Connecticut, also known as Nelson Lamoth, to be his absolutely; The other one-half to Aurea Senecal of 200 Providence Street, Putnam, Connecticut to be hers absolutely. Yes. She would not have revoked the original item 5 if she knew the new item 5 would fail.

20. Dependent relative revocation • The DRR doctrine requires that either • there is an alternative plan of disposition that fails, or • the mistake is recited in the terms of the revoking instrument (problem 2, p. 299) • a few courts are willing to accept a mistake not in the terms of the revoking instrument when proved by clear and convincing evidence, as in Anderson, problem 2, page 300).

21. Problem 2, p.298 • On his typewritten will that includes a bequest of $1,000 to his nephew, T crosses out the $1,000, writes in $1,500, and initials and dates the change. • $1,000—the handwritten part standing alone does not demonstrate testamentary intent; original bequest saved by DRR; $1,500 with observation and signature by witnesses • $1,000—the $1,500 is not valid but neither is the crossing out of the $1,000 • $1,000 per DRR • Not clear. Would the testator have preferred to leave nothing or the full $1,000?

22. Problem 3, p.298 • On his typewritten will that includes a bequest of $5,000 to John Boone, T crosses out John and writes in Nancy. Can Nancy take? • Nancy cannot take because the new bequest is not properly witnessed • Does DRR save the bequest to John? • Ordinarily not. T did not want John to take. But if John and Nancy are married, then DRR might be applied. • Note the differential treatment as a holograph depending on whether the original will was a holograph.

23. Revival • Revival refers to situations in which a T • executes will 1, • revokes will 1 by executing will 2, and • revokes will 2 on the assumption that will 1 is revived • In most states, will 1 is revived • In a minority, will 1 is not revived unless re-executed, and will 2 is saved by dependent relative revocation • In a few states, a first will is not revoked by a second will until the second will takes effect at T’s death, so will 1 never was revoked by will 2 and will 1 would be valid at T’s death

24. Revival in Indiana • And if, after the making of any will, the testator shall execute a second, a revocation of the second shall not revive the first will, unless it shall appear by the terms of such revocation to have been his intent to revive it, or, unless, after such revocation, he shall duly republish the previous will. • Ind. Code § 29-1-5-6

25. UPC §2-509 Summary • Under section (a), if will 2 (the revoking instrument) 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. • Under section (b), 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. • Under section (c), if will 2 is revoked by a later will, will 3 does not revive will 1 unless the text of will 3 indicates such a result is what the testator intended.

26. Problems, p. 305 2. Who takes T’s property under UPC § 2-509(c)? • T probably wanted A to take under the first will—judging from the fact that he kept all three wills in his safe deposit box. However, you can’t tell that from the terms of the third will, as required to revived the first will under 2-509(c). Thus, H takes the estate. 3. UPC § 2-509 and UPC § 2-503 make DRR less necessary but not unnecessary. DRR tries to provide the testator’s second preferred approach. The two UPC provisions let the court accept evidence of the testator’s intent to carry out the testator’s preferred approach. DRR would still be needed when a first will is revoked but the second will is not actually drafted.

27. Revocation by operation of law • Revocation by divorce • Applies in all but a handful of states where revocation occurs only if the divorce is accompanied by a property settlement. • Revocation by marriage • Spouse generally takes intestate or elective share • Revocation by birth of children • Pretermitted child statutes protect unmentioned children who were born after the execution of the will • No revocation by other changes in circumstances

28. Effect of divorce on a will • If after making a will the testator is divorced, all provisions in the will in favor of the testator's spouse so divorced are thereby revoked. Annulment of the testator's marriage shall have the same effect as a divorce as hereinabove provided. • Ind. Code § 29-1-5-8 • Under UPC § 2-804, provisions in favor of the spouse in wills, non-probate transfers and will substitutes are revoked, as are provisions in favor of the divorced spouse’s relatives.

29. Components of a will • We have seen that wills must be executed with testamentary formalities and that documents not so executed may not be treated as wills • Nevertheless, there are circumstances under which evidence from non-will documents may be used to interpret wills • Incorporation by reference • Acts of independent significance

30. Components of a will 1. Integration of wills 2. Republication by codicil 3. Incorporation by reference 4. Acts of independent significance

31. Integration of wills: Estate of Rigsby Page 1 Page 2?

32. Republication by codicil • A will is treated as if it were executed when its most recent codicil was executed, whether or not the codicil expressly republishes the prior will, unless the effect of so treating it would be inconsistent with the testator’s intent. • Restatement (Third) of Property: Wills and Other Donative Transfers § 3.4 • As the example on page 309 indicates, a codicil can fix an interested witness problem with the first will

33. UPC §2-510:Incorporation by Reference • Any writing in existence when a will is executed may be incorporated by reference if • the language of the will manifests this intent and • describes the writing sufficiently to permit its identification. • UPC § 2-510

34. Clark v. Greenhalge Clark v. Greenhalgep. 310 Promise to Ginny Clark to give her farm picture (presumptively contemporaneous entry in notebook). Will executed. Tangibles to Greenhalge except as “designate[d] by a memorandum … or in accordance with [my] known wishes.” “Memorandum” with list of tangibles drafted. No mention of farm picture. Codicil 2 duly executed Jan./Feb. 1980 May 1980 Oct. 1980 1972 1976 1977 1979 1986 “Memorandum” modified by Testator’s cross-outs, handwritten additions. No mention of farm picture. Notebook notations made. Nurses see Testator writing in it. Testator dies. Codicil 1 duly executed.

35. Note some loose ends from Clark • We know that the notebook was in existence when Ms. Nesmith executed her codicils, but do we know that the devise to Ms. Clark was written by October 23, 1980? • Did Ms. Nesmith intend to incorporate the memoranda as part of her will or to provide a guide to her executor (note 40, p. 312, and court on p. 313 (“It is a written instrument which is intended to guide Greenhalge”))? • As UPC § 2-513 indicates, the law is relaxed when it comes to tangible personal property

36. Simon v. Graysonp.315 Simon v. Grayson Will left $4,000 to his executors “to be paid by them as shall be directed by me in a letter that will be found in my effects and which will be addressed to my executors and dated March 25, 1932.” Letter of July 3, 1933 found in the testator’s safe-deposit box addressed to the executors: “In my will I have left you $4,000 to be paid to a person named in a letter. I direct you to pay the $4,000 to Esther Cohn.” Mar. 25, 1932 July 3, 1933 Nov. 25, 1933 1935 After 1935 Codicil to the will. Testator dies.

37. Problem 1, page 315 • Under standard incorporation by reference doctrine, an entry made after execution of the codicils would not be valid • Under harmless error (UPC § 2-503) and UPC rule for incorporation by reference (UPC § 2-513), the entry would be valid. Substantial compliance probably would result in upholding the entry

38. UPC §2-512: Acts of independent significance • 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, whether they occur before or after the execution of the will or before or after the testator’s death. • Note that this doctrine allows the testator to alter the identifies of beneficiaries, or the property they receive, after execution of the will • Case 2, pp. 323-324, and leaving a more valuable automobile to a nephew, or changing the beneficiaries of the $1,000 payments to employees • No reason to think the purchase of the new car or the hiring and firing decisions were influenced by the will

39. Problems, p.324 • 1. “Contents of my house” • It is unlikely that T would have changed furniture, jewelry, artwork and clothing because of the will. But would it have affected what T put in the safe? • Stock certificates and cash—intangible personal property—may not count when the bequest is a general one like this. • “Contents of the right-hand drawer of my desk” or of “my safe deposit box at First National bank” • Courts uphold bequests from safe deposit boxes, even though they could be affected by testamentary motives, because of the protections against fraud. • A locked right-hand drawer with no access to others is difficult to distinguish from a safe deposit box

40. Problems, p.324 • T’s will describing the envelopes • Could uphold under either acts of independent significance or incorporation by reference (if in existence at time of will or later codicil) 2. Sarah’s devise of the residue of her estate in 2000 to a charitable trust established by her brother, which was established in 2001. • The devise can be upheld under the doctrine of independent significance. It is a devise of Barney’s own property that she ties into. Moreover, no room for fraud since the object of her bequest is found in another duly executed will. • Can’t use incorporation by reference since Barney’s will wasn’t in effect when she wrote her will.

41. Contracts relating to wills • Contracts relating to wills • Are promises to provide a bequest enforceable? • Are promises not to revoke a testamentary bequest enforceable? • The law of wills and trusts looks to the law of contracts for answers

42. Problems on contracts to make a bequest, p. 326 • Sidney has no contract claim—the terms of the “contract” are too ambiguous to be enforced. Sidney’s only remedy lies in quantum meruit, but he probably has already been paid for his services. • The breach of the contract did not revoke the will, so A takes under the will. T could have revoked the will, and A would have been out of luck. But T didn’t. (Had T revoked the will, A would have been entitled to quantum meruit for the services she did perform.)

43. Problems on contracts to make a bequest, pp. 326-327 • We don’t have a valid will (one signature), but we have a valid contract to make a will. B was entitled to specific performance of the contract. • The result in Borelli is unfair. W really did give consideration.

44. Contracts not to revoke a will • Usually arise in the context of mutual or joint wills between spouses (e.g., Pavlinko, Snide, Hall) • States have tried to avoid interpretive problems by requiring contracts for bequests to be in writing (UPC § 2-514) • But the writing requirement is not always enforced

45. Indiana on contracts not to revoke a will • In order to create a contract not to revoke a will, no single verbal formula is necessary. • “It is generally accepted that a strong indicia of such a contract is a joint will that treats the testators' property as a single unit,” leaving property to the survivor and then to “a logical beneficiary of both the testators.” • Kitchen v. Blue, 498 N.E.2d 41 (1986) • "The burden of proving that mutual and reciprocal wills were made pursuant to a valid and enforceable contract is on those who assert such to be true,” and extrinsic evidence may be considered • Cramer v. Echelbarger, 234 N.E.2d 864 (1968)

46. Avoiding a finding of a contract not to revoke a will • Wills not Contractual. Although my Husband/Wife/Spouse and I are executing our Wills at or about the same time, they are not intended to be and shall not be construed to be contractual, even though certain provisions are reciprocal. Each Will shall be subject to revocation by its maker.

47. Via v. Putnam Can public policy override contracts not to revoke? Via v. Putnam, p. 329 CONTRACT Joann Putnam Edgar Putnam Rachel Putnam Pretermitted Spouse Share?? Florida decides that pretermitted spouse (and elective share) statutes trump the contract; majority of states come out the other way Children

48. Problem with enforcing promises not to revoke after remarriage • If the contract dictates that the estate goes to the children rather than a new spouse when the surviving spouse dies, to what extent can the surviving spouse use assets of the estate during the second marriage? • Can the two of them go an expensive cruise together? • Can the surviving spouse buy an expensive anniversary gift? • As we’ll see more clearly when we discuss the trusts part of this course, you should use trusts rather than contractual wills to work out issues about the ultimate disposition of a couple’s estate. • Prenuptial agreements also are important for remarriages

49. Will execution in Indiana Ind. Code § 29-1-5-3 b) A will may be attested as follows: (1) The testator, in the presence of two (2) or more attesting witnesses, shall signify to the witnesses that the instrument is the testator's will and either: (A) sign the will; (B) acknowledge the testator's signature already made; or (C) at the testator's direction and in the testator's presence have someone else sign the testator's name. (2) The attesting witnesses must sign in the presence of the testator and each other.

50. UPC §2-513: Incorporating tangible personal property • Separate writings for the disposition of tangible personal property may be prepared after the execution of the will if • the writing is signed by the testator and • the property and devisees are described with reasonable certainty • The writings may be altered by the testator after its preparation