Formalities Issues in Review Problem 3B(2): Writing, Testator, Signature, Witnesses

1. Review Problem 3B(2) FORMALITIES CHECKLIST: Problems? • Writing • Testator • Signature or Directed • At End • Witnesses • Number • Interested • Witnessing T • W’s Signatures

2. Review Problem 3B(2) FORMALITIES PROBLEMS • Writing • Testator • Signature • At End • Witnesses • Number: 2 v. 3 • Interested: D is Bfry • Witnessing T: D was in kitchen when K signed • W’s Signatures: D was in kitchen when W signed

3. Review Problem 3B(2) FORMALITIES PROBLEMS: Witnesses • Number: 2 v. 3 [Some states require 3; Not FL or UPC] • Interested: D is Bfry: Significance?

4. Review Problem 3B(2) FORMALITIES PROBLEMS: Witnesses • Number: 2 v. 3 [Some states require 3; Not FL or UPC] • Interested: D is Bfry: Significance? • FL/UPC: Irrelevant • Many States: Invalidates Gift to D • Some States: • OK if Gift to D is less than her intestate share (here either 50% or 25%) • NEW INFO: Just creates presumption of UI in some states (D could probably rebut here, since she is a Witness only by chance)

5. Review Problem 3B(2) (Last Names K-N) FORMALITIES PROBLEMS: Witnesses • Witnessing T: D was in kitchen when K signed • W’s Signatures: D was in kitchen when W signed UPC § 2-502: Must “witness[] either the signing of the will … or the T's acknowledgment of that signature or acknowledgement of the will” & must sign “within a reasonable time after the individual witnessed either the signing … or the T's acknowledgment” Fl. Stat. §732.502 (1)(b):”T’s signing or acknowledgement … must be in the presence of“ the witnesses, who “[M]ust sign the will in the presence of the testator and in the presence of each other.”

6. Trusts & Estates Essentials: Logistics Remaining Schedule Five Classes Left After Today :Selected Sections & Mostly Lecture I will add some slides beyond what we do in class for coverage of problems or less important subtopics Fri 10/25: Exam (Means I Can Post Lots of Sample Qs between now & end of break and leave you 2 weeks for your Qs & Office Hours)

7. UNIT TWO: WILLS Problems 3(D) & 4:2 (Undue Influence & Formalities) Last Names A-D & Q-Z

8. Review Problem 3D(1) Last Names A-D & Q-Z Evidence to Support Presumption of UI b/c of Confidential Relationship: • J initially is S’s atty and does early drafts of will. • J receives a “large civic auditorium” under the will (undoubtedly valuable) What Evidence Tends to Rebut Presumption?

9. Review Problem 3D(1) Last Names A-D & Q-Z Evidence That Tends to Rebut Presumption includes • J protested when S wanted to make her a bfry • Turned over doing final draft to another atty, who drafted the gift to J • J urges S to get to know his Niephlets (only surviving family) • Bulk of estate went to charity. Weaknesses of This Evidence?

10. Review Problem 3D(2) Last Names A-D & Q-Z FORMALITIES CHECKLIST: Problems? • Writing • Testator • Signature or Directed • At End • Witnesses • Number • Interested • Witnessing T • W’s Signatures

11. Review Problem 3D(2) Last Names A-D & Q-Z FORMALITIES PROBLEMS • Writing • Testator • Signature • At End • Witnesses • Number: 2 v. 3 (So depends on What State Requires) • Interested: No • Witnessing T: LA did not see signature; T said it was his will • W’s Signatures: LA not in room when B signed

12. Review Problem 3D(2) Last Names A-D & Q-Z FORMALITIES PROBLEMS: Witnesses • Witnessing T: LA did not see signature; T said it was his will • W’s Signatures: LA not in room when B signed UPC § 2-502: Must “witness[] either the signing of the will … or the T's acknowledgment of that signature or acknowledgement of the will” & must sign “within a reasonable time after the individual witnessed either the signing … or the T's acknowledgment”

13. Review Problem 3D(2) Last Names A-D & Q-Z FORMALITIES PROBLEMS: Witnesses • Witnessing T: LA did not see signature; T said it was his will • W’s Signatures: LA not in room when B signed Fl. Stat. §732.502 (1)(b):”T’s signing or acknowledgement • That he or she has previously signed the will, or • That another person has subscribed the testator’s name to it – must be in the presence of“ the witnesses, who “[M]ust sign the will in the presence of the testator and in the presence of each other.”

14. Review Problem 3D(2) Last Names A-D & Q-Z SUBSTANTIAL COMPLIANCE/HARMLESS ERROR I’ll Leave For You, but Very Likely Intended to be Will & Videotape (if Locarted) May Minimize Significance of Formalities Issues

15. Review Problem 3B(2) Formalities Issues in Problem w Dying Testator & Rushed Will Ceremony spanning last 2 classes Won’t spend class time on but I’ll add slides here

16. Problem 4:2 = Last Names A-D & Q-Z • M’s atty composed a draft of a will for her • Stamped “DRAFT” in red ink on the top of the first page. • Distributive provisions appear on the first three pages. • Fourth page contains an attestation clause followed by lines for two witness signatures. • M reviewed the draft and liked it.

17. Problem 4:2 = Last Names A-D & Q-Z • M crossed out the word “DRAFT” in black ink, • Her 2 adult children agreed to serve as attesting witnesses and asked to review the will. • M showed them the title of the document but not the dispositive provisions, • Children signed on signature page. Martina then signed the will while her children watched. • M said, “This is my will and it's important that you respect my final wishes.” • M died survived by the two adult children. • A local homeless shelter is sole beneficiary of M’s will, • M’s children contest.

18. Problem 4:2 = Last Names A-D & Q-Z You represent the homeless shelter, the proponent of the will. How would you respond to the following arguments asserted by Martina’s children contesting the will’s validity? Assume UPC § 2-502(a) applies and that the court adheres to the doctrine of strict compliance. Argument 1:“The document signed by M was marked as a draft and, therefore, cannot be treated as a final testamentary instrument.”

19. Problem 4:2 = Last Names A-D & Q-Z You represent the homeless shelter, the proponent of the will. How would you respond to the following arguments asserted by Martina’s children contesting the will’s validity? Assume UPC § 2-502(a) applies and that the court adheres to the doctrine of strict compliance. Argument 1:“The document signed by M was marked as a draft and, therefore, cannot be treated as a final testamentary instrument.” Q of testamentary intent. Evidence Here?

20. Problem 4:2 = Last Names Last Names A-D & Q-Z Argument 1:“The document signed by M was marked as a draft and, therefore, cannot be treated as a final testamentary instrument.” Q of testamentary intent. Lot of evidence here: • Crosses out “draft” • Asked her children to witness • M signed the will • M asked her children to sign • After signing , M said, “This is my will and it’s important that you respect my final wishes.”

21. Problem 4:2 = Last Names A-D & Q-Z Argument 2: “The attorney’s cover letter accompanying the will instructed Martina to review but not sign the draft will. The cover letter stated, further, that the will execution ceremony had to take place in the attorney’s office to ensure compliance with ‘proper procedures.’. Martina had an obligation to follow her attorney’s instructions if she wished to use the document and, because she violated the attorney’s instructions, the instrument cannot be probated as a valid will.”

22. Problem 4:2 = Last Names A-D & Q-Z Argument 2: Failure to follow counsel’s advice doesn’t invalidate will if she meets statutory requirements. Argument 3:“Martina refused to allow her children to review the contents of the will, so they were unable to authenticate the document, as is required for proper witness attestation.”

23. Problem 4:2 = Last Names A-D & Q-Z Argument 3: No requirement that witnesses review the dispositive provisions. She declared it to be her will so Ws can authenticate it. Argument 4: “The statute requires that attesting witnesses sign ‘within a reasonable time after the individual witnessed either the [testator’s] signing of the will . . . or the testator’s acknowledgement of that signature or acknowledgement of the will.’ The adult children signed the document before Martina signed it, not after, so the instrument was not properly attested.”

24. Problem 4:2 = Last Names A-D & Q-Z Argument 4: “The statute requires that attesting witnesses sign ‘within a reasonable time after the individual witnessed either the [testator’s] signing of the will . . . or the testator’s acknowledgement of that signature or acknowledgement of the will.’ The adult children signed the document before Martina signed it, not after, so the instrument was not properly attested.” • She acknowledged the will before they signed. • UPC § 502 Comment m notes that where “the testator and the witnesses sign as part of a single (or continuous) transaction, the exact order of signing is not critical.”

25. UNIT TWO: WILLS CHAPTER 4 WILLS: FORMALITIES Section 4.1.1: Attested Wills (cont’d) Acts of Independent Significance

26. Acts of Independent Significance UPC §2-512: Events 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. The execution or revocation of another individual's will is such an event. [Fl. Stat. §732.512(2) is virtually identical]

27. Acts of Independent Significance • A devise may identify its object (beneficiary) or subject (the gift) by reference to future acts, events, or occurrences. • A future act, event, or occurrence that changes the object or subject of a devise is not an unattested change to the will so long as the referenced act event, or occurrence has significance apart from its effect on the will. • Good examples in book: • My car to my caretaker (OK) • Name in envelope in drawer (not OK) • Problem 4:5 designed to flesh out doctrine.

28. Acts of Independent Significance: Problem 4:5 • “I leave all monies in my Atlantic Bank savings account to the woman I shall marry.” On the date of the will’s execution, the testator was married to Florence; on the date of the testator’s death, the testator was married to Joan. [Note weirdness of “I shall marry” when already married.] • “I leave all monies in my Atlantic Bank savings account to the woman I shall marry.” On the date of the will’s execution, the testator was unmarried; on the date of the testator’s death, the testator was married to Vicky. • Marriage seen as having independent significance.

29. Acts of Independent Significance: Problem 4:5 c. “I leave the sum of $25,000 to each of my children who graduate from college.” On the date of the will’s execution, the testator’s four young children were enrolled in elementary school; on the date of the testator’s death, three of her children had graduated from college. [Easy YES.] d. “I leave the contents of my safe deposit box at Lakeside National Bank to the person or persons with whom I share my last Thanksgiving dinner.” The testator ate his last Thanksgiving dinner at the counter of a roadside diner and sat next to a stranger. The safe deposit box contains a deed to real property. [Complex]

30. Acts of Independent Significance: Problem 4:5 e. “I leave $100,000 to the residuary beneficiary of my sister’s estate.” The testator’s sister executed her will three years later and left the residue of her estate to charity. [Easy yes; statutory language in UPC & FL references] f. “I leave the residue of my estate to the person whose photograph is stapled to this will at my death.” [Easy NO. No purpose but to keep control of property]

31. UNIT TWO: WILLS CHAPTER 4 WILLS: FORMALITIES Section 4.1.2: Holographic Wills Section 4.1.3: Curative Doctrines

32. Holographic Wills: • Definition: A will written and signed in the testator’s own handwriting. • “Holograph” = written entirely by the person whose signature it bears • In roughly half the states (not FL), holographic wills are exempt from witness attestation requirement. • Idea is that the testator’s handwriting sample provides sufficient evidence of authenticity.

33. Holographic Wills: How Much Handwriting Needed? Restatement (Third) of Property: Wills and Other Donative Transfers § 3.2 cmt. a (1999) Notes three phases of Doctrine: • Typical first-generation holographic-will statute. “A holographic will is one that is entirely written, dated, and signed by the hand of the testator. It is subject to no other form, and need not be witnessed.” • Second-generation holographic-will statute—Original UPC. “A will which does not comply with [the requirements for an attested will] is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.”

34. Holographic Wills: How Much Handwriting Needed? Restatement (Third) of Property: Wills and Other Donative Transfers § 3.2 cmt. a (1999) Notes three phases: • Third-generation holographic-will statute—Revised UPC [Section 2-502(b)]. “A will that does not comply with [the requirements for an attested will] is valid as a holographic will, whether or not witnessed, if the signature and [the] material portions of the document are in the testator's handwriting.” • Note text at W140 noting that names of beneficiaries & items of property can constitute “material portions” and use of a form with blanks can be evidence document is intended to be will.

35. Holographic Wills: In re Will of Morris - Will in Q drafted by filling in blanks on pre-printed form then adding two handwritten paragraphs following printed section • Virginia Statute requires holographic will to be whollyin T’s handwriting, so form seems not to qualify. • However, Virginia caselaw says if the handwritten portion of a purported will contains a complete and entire testamentary disposition, the handwritten portion of the document can be admitted to probate as a valid holographic will and the printed or typed material on the document can be disregarded. • Court finds this to bet true here. • Note also $1 gift to adopted son.

36. Holographic Wills: Problem 4:6 • Elderly mother Samantha dictates will to her son Evan, who writes it out in his handwriting. S then signs across the top in shaky writing: This is my will. Evan wrote it for me. Love to all, Samantha a) Doesn’t satisfy UPC § 2-502(b)’s requirement that “material portions of the document” be in the T’s handwriting (Evan is not T). Might try to claim incorporation by reference [see next class], but signature on top would make it easy to add provisions S didn’t intend b) Because Evan is the primary beneficiary and the scrivener, could raise Qs of undue influence. (Door to room closed; hard to prove he wrote what she said and didn’t pressure her)

37. Non-Cupative Wills: See Chapter 4 Footnote 4 An oral declaration made close to the time of death. • Allowed in a few states; not recognized by UPC or Florida • Where recognized , they are gien effect on the theory that the decedent lacked sufficient time to reduce her estate plan to writing. • Statutes typically require that • the oral declaration be made by a person in imminent peril of death before disinterested witnesses; • the testator died from the impending peril; and • the oral declaration is reduced to writing by one of the witnesses and probated shortly after the testator's death. [I did one Q on this in Spring test]

38. Section 4.1.3: Curative Doctrines Ways to get around strict compliance with formalities requirements • Substantial Compliance (a few states) • Harmless Error (UPC & a few states)

39. Substantial Compliance • Langbein (cited in Casebook): Don’t need all formalities where circumstances suggest: • Reasonable certainty that T intended the document to be will • Reasonable certainty that there has been no fraud, forgery, alteration, replacement • NJ Test: Proponent of will must show … • “… by clear and convincing evidence… • … that the will substantially complies with the statutory requirements.” [Requires consideration of purposes]

40. Harmless Error (Mostly replaced Substantial Compliance in states with Curative Doctrines) • Excuses noncompliance with the Wills Act if there’s adequate proof that the decedent intended the document to be her will. • Analysis does not depend on whether the formalities observed serve the underlying functions of Wills Act formalities. • Instead, asks whether there is clear and convincing evidence that the decedent intended the writing as a will.

41. Generous Read of Harmless Error: Estate of Ehrlich • Unsigned document w detailed disposition of T’s whole estate • NJ court finds clear & convincing evidence that it was intended to be a will and applies harmless error rule • Document prepared anticipating surgery. • Handwritten note indicating sent to named executor • Subsequent oral acknowledgement as his will • Dissent would require signature for harmless error (several other states do this)

42. Harmless Error: Problem 4:7 • Based on In re Probate of Will and Codicil of Macool, 3 A.3d 1258 (N.J. App. Div. 2010), • Decedent left handwritten notes from which atty drafted will but decedent died before executing. • Handwritten notes unsigned & not specific enough to be will (unclear how to do even split but leave house with step children) • Not clear and convincing evidence notes or draft will were intended by decedent to be her will.

43. UNIT TWO: WILLS CHAPTER 4 WILLS: FORMALITIES cont’d 4.2 Will Amendment & Revocation

44. Will Amendment & Revocation A. Testator’s Intentional Acts 1. Codicils & Other Subsequent Writings 2. Physical Acts 3. Revival of Revoked Wills B. Problems re Revocation & Testator’s Intent 1. Lost Wills 2. Revocation by Operation of Law (We’ll do w Ch. 7) [BUT need to know that divorce undoes gift to former spouse]

45. Amendment/Revocation by T’s Intentional ActsGeneral Concerns • Underlying will created with all formalities. When is it OK to change or revoke with fewer formalities/less ceremony? • If relying on cross outs or other physical acts: • How certain are we that the testator performed the acts? • How certain are we that the testator intended to revoke?

46. Amendment/Revocation by T’s Intentional ActsCodicils & Other Subsequent Writings: Florida Fl. Stat. 732.505 Revocation by writing.—A will or codicil, or any part of either, is revoked: • (1) By a subsequent inconsistent will or codicil, even though the subsequent inconsistent will or codicil does not expressly revoke all previous wills or codicils, but the revocation extends only so far as the inconsistency. • (2) By a subsequent will, codicil, or other writing executed with the same formalities required for the execution of wills declaring the revocation.

47. Amendment/Revocation by T’s Intentional ActsCodicils & Other Subsequent Writings: UPC UPC § 2-507. Revocation by Writing or by Act (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; … (b) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.

48. Amendment/Revocation by T’s Intentional ActsCodicils & Other Subsequent Writings: UPC UPC § 2-507. Revocation by Writing or by Act … (c) The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator's death. (d) The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent.

49. Amendment/Revocation by T’s Intentional ActsCodicils & Other Subsequent Writings Codicil: A testamentary instrument that • Amends or supplements a previously executed will. • Satisfies necessary formalities for creation of a will. In states that allow holographic wills, can have handwritten codicil to typewritten wills (see box on bottom of W158). In Florida and some other states, if original will was not created with proper formalities, a proper codicil referencing the earlier will makes that will valid. (see next slide, W159 & Fl.Stat. 732-5105)

50. Republication by Codicil A prior will is treated as re-executed as of the date of its most recent codicil if (and only if) such treatment would be consistent with the testator’s intent. Example 1: • 2000: Alan executes a typewritten will: “I leave the sum of $25,000 to my dear friend Suzy and appoint my brother Barry executor of my estate.” • Alan signs the will,but does so without obtaining signatures of two attesting witnesses. • 2012: Alan executes a valid holographic codicil: “I appoint Suzy as executor of my estate.” He makes no other changes or dispositions. • 2013: Alan dies. Does Suzy inherit $25,000 from Alan’s will? YES