1 / 49

Trusts & Estates Essentials Power Point Slides Class #10

Learn about the formalities for attested wills, holographic wills, curative doctrines, and the amendment and revocation of wills through the testator's intentional acts.

mglick
Download Presentation

Trusts & Estates Essentials Power Point Slides Class #10

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Trusts & Estates EssentialsPower Point Slides Class #10 2-19-19 NATIONAL CHOCOLATE MINT DAY NATIONAL LASH DAY

  2. UNIT TWO: WILLS CHAPTER 4 WILLS: FORMALITIES cont’d 4.1.1Formalities for Attested Wills 4.1.2Holographic [& Non-Cupative] Wills 4.13 Curative Doctrines 4.2 & 4.3 Will Amendment & Revocation

  3. 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. Dependent Relative Revocation 3. Revocation by Operation of Law (We’ll do w Ch. 7)

  4. 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?

  5. 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.

  6. 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.

  7. 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.

  8. 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)

  9. 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

  10. Problem 4.8 ‘82 will gives to Z if living and if not to children ‘92 [A testator’s divorce revokes all dispositions in favor of the divorced spouse by operation of law. UPC § 2-804] ‘02 Codicil: real estate to S; all remaining terms of will still in effect • Who inherits Lucy’s real estate holdings? (Codicil valid, so S) • Who inherits Lucy’s bank account? (What does codicil do to legal effect of divorce)?)

  11. Problem 4.8 Who inherits Lucy’s bank account? (What does codicil do to legal effect of divorce)?) If republication by codicil applies, will is treated as though executed in 2002, thus reviving gift to Z. If not, then will treated as executed in 82 and subsequent divorce eliminates gift to Z. Since republication by codicil based in intent, Q would be if L intended to revive gift to Z

  12. Amendment/Revocation by T’s Intentional ActsCodicils & Other Subsequent Writings Can revoke by inconsistent subsequent will. • Note: Florida says to extent of inconsistency • UPC widens inquiry by asking about intent.

  13. Amendment/Revocation by T’s Intentional ActsRevocation by Physical Acts UPC § 2-507(a). Revocation by Writing or by Act. A will or any part thereof is revoked … (2) 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. For purposes of this paragraph, "revocatory act on the will" includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. A burning, tearing, or canceling is a "revocatory act on the will," whether or not the burn, tear, or cancellation touched any of the words on the will.

  14. Amendment/Revocation by T’s Intentional ActsRevocation by Physical Acts UPC § 2-507(a) (2). For purposes of this paragraph, "revocatory act on the will" includes burning, tearing, canceling, obliterating, or destroying the will or any part of it. Fl. Stat. 732.506 Revocation by act.—A will or codicil is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation.

  15. Amendment/Revocation by T’s Intentional ActsRevocation by Physical Acts: Estate of Gushwa • 2000 George executes will appointing Ted as executor • George gives Ted the will for safekeeping keeps photocopy • George decides to revoke the will but Ted refuses to return it • George then attempts to revoke in 2 ways: • New lawyer prepares a “Revocation of Missing Will(s)” signed by Gushwa and 2 attesting witnesses; • Gushwa also writes “Revoked” on each page of the photocopy of his will

  16. Amendment/Revocation by T’s Intentional ActsRevocation by Physical Acts: Estate of Gushwa • George attempts to revoke prior will in 2 ways: • New lawyer prepares a “Revocation of Missing Will(s)” signed by Gushwa and 2 attesting witnesses; • Unfortunately, New Mexico only allows revocation by subsequent “will” (as opposed to any subsequent writing) • Document is not a will, so doesn’t revoke. • Writing “Revoked” on each page of the photocopy of his will • Fails because revocation by physical act must be of original document. • Probably sensible result because often multiple copies around. • Casebook authors suggest in Q22 (W170-71) that if N.M had harmless error rule, could use here.

  17. Amendment/Revocation by T’s Intentional ActsRevocation by Physical Acts: Problem 4.9 Marcia executes a valid will in 1994 and a valid codicil in 2008. Marcia dies in 2017. What is the effect on Marcia’s will and codicil of the following, assuming they occurred in 2016: • Marcia tears the codicil in half with intent to revoke it. • This is a valid revocation of the codicil (revocatory act (tearing) on the original instrument with intent to revoke it) • ‘The codicil is revoked but the will remains in effect. To the extent that the will was partially revoked by inconsistency with the now-revoked codicil, those previously revoked provisions come back to life.

  18. Amendment/Revocation by T’s Intentional ActsRevocation by Physical Acts: Problem 4.9 Marcia executes a valid will in 1994 and a valid codicil in 2008. Marcia dies in 2017. What is the effect on Marcia’s will and codicil of the following, assuming they occurred in 2016: b. Marcia tears the will in half with intent to revoke it. • This is a valid revocation of the will (revocatory act (tearing) on the original instrument with intent to revoke). • Revocation of a will also revokes all codicils, so the codicil is also revoked. • Same result for (d): diagonal line across front page of will. c. Marcia directs her attorney to revoke the will. • OK if atty does act to revoke but must be in her presence • Atty prepared writing OK if M signs it.

  19. Amendment/Revocation by T’s Intentional ActsRevocation by Physical Acts: Problem 4.9 Marcia executes a valid will in 1994 and a valid codicil in 2008. Marcia dies in 2017. What is the effect on Marcia’s will and codicil of the following, assuming they occurred in 2016: e. Marcia’s house was destroyed by fire. The fire marshal determines that Marcia caused the fire intentionally for the purpose of committing insurance fraud. Marcia survives the fire but does not collect insurance proceeds. The original will and codicil were inside her house and there are no copies. • Not revoked because no intent to revoke will. • Can probate will & codicil if can prove contents.

  20. Amendment/Revocation by T’s Intentional ActsPARTIAL Revocation by Physical Acts Majority of States & UPC allow partial revocation by cancelling/obliterating (can be simply crossing out) particular provisions of a will with intent to leave rest of document intact. • Possible problem: Was T the one who crossed out the provision in Q? (easy to commit this kind of fraud) • Schumacher is straightforward case of partial revocation where court finds sufficient evidence that T performed acts from • atty testimony about circumstances of cancellation plus • evidence that document stayed in T’s possession

  21. Amendment/Revocation by T’s Intentional ActsRevival of Revoked Wills (UPC § 2-509) UPC §2-509 Revival of Revoked Will • (a) If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under Section 2-507(a)(2), the previous will remains revoked unless it is revived. The previous will is revived 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 the previous will to take effect as executed.

  22. Amendment/Revocation by T’s Intentional ActsRevival of Revoked Wills (UPC § 2-509) UPC §2-509 Revival of Revoked Will • (b) If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act under Section 2-507(a)(2), a revoked part of the previous will is revived unless 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 did not intend the revoked part to take effect as executed.

  23. 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. Dependent Relative Revocation 3. Revocation by Operation of Law (We’ll do w Ch. 7)

  24. Problems re Revocation & T’s IntentLost Wills • A will known to be duly executed that cannot be found raises complex factual issues: • Did the testator store it in a hard-to-find location? • Did the testator simply lose the will? • Did someone other than the testator (e.g., an heir) destroy the will without permission? • Did the testator destroy the will with the intent to revoke? • Did someone other than the testator destroy the will at the direction of the testator?

  25. Problems re Revocation & T’s IntentLost Wills • A lost will that was duly executed and not revoked can be probated upon reliable proof of its contents (e.g., production of a reliable duplicate copy.) • Likewise, a will that is fraudulently destroyed may be probated upon proof of the fraud and contents of the will.

  26. Problems re Revocation & T’s IntentLost Wills: In re Estate of Conley • North Dakota adopts the common law presumption that a will last known to be in the testator’s possession but not among the testator’s personal effects at death is presumed revoked by the testator. • “[T]he party petitioning for the probate of a missing will must demonstrate… that the will existed at the time of the testator's death, that the will was fraudulently destroyed in the lifetime of the testator, or by other evidence demonstrating the testator did not intend to revoke the missing will.” [Ct remands for application of this test.]

  27. In re Estate of Conley753 N.W.2d 384 (N.D. 2008)

  28. Problems re Revocation & T’s IntentLost Wills: In re Estate of Conley The proponent has lawyer’s copy of the will, so no Q as to its contents. Nasty family case where proponent accuses her brother of entering her home and taking a copy of the will because he gets nothing under the will but intestate share would be 25%. Problem 4.10: Proponent would claim will destroyed by brother (or other intestate heirs) and that brother knew and had access to place where T’s copy of will was stored.

  29. Problems re Revocation & T’s IntentDependent Relative Revocation (DRR)Restatement calls this “ineffective revocation” Restatement 4.3 (a) A partial or complete revocation of a will is presumptively ineffective if the testator made the revocation: (1) in connection with an attempt to achieve a dispositive objective that fails under applicable law [e.g., if later-drafted will is invalid], or (2) because of a false assumption of law, or because of a false belief about an objective fact, that is either recited in the revoking instrument or established by clear and convincing evidence. (b) The presumption established in subsection (a) is rebutted if allowing the revocation to remain in effect would be more consistent with the testator’s probable intention.

  30. Problems re Revocation & T’s IntentDependent Relative Revocation (DRR)Restatement calls this “ineffective revocation” Restatement 4.3 (a) A partial or complete revocation of a will is presumptively ineffective if the testator made the revocation: (1) in connection with an attempt to achieve a dispositive objective that fails under applicable law [e.g., if later-drafted will is invalid], or (2) because of a false assumption of law, or because of a false belief about an objective fact, that is either recited in the revoking instrument or established by clear and convincing evidence. Good testable examples in textbook on W184-86.

  31. Problems re Revocation & T’s IntentRevocation by Operation of Law We’ll come back to Section 4.2.4 when we do Chapter 7

  32. UNIT TWO: WILLS CHAPTER 5 WILLS: COMPONENTS & PROVISIONS 1. Integration & Incorporation 2. Classification of Devises 3. Other Provisions

  33. Integration & IncorporationIntegration & the Staple Rule • Q sometimes arises about which sheets of paper are part of will. • Rule from Restatement: page is part of will if • Present when the will was executed; AND • Intended to be part of will • Extrinsic evidence allowed on these Qs. • Physical connection (e.g., by staple) or internal logical coherence raises an inference of presence at execution

  34. Integration & IncorporationIntegration & the Staple Rule: Problem 5.1 • T prepares a 6 page document titled “last will and testament.” 5 pages of dispositive provisions plus p.6 with places for signature & attestation. T does not sign & 5 years pass. • T drafts a seventh page (another signature/attestation page), staples it to original document, then signs followed by witnesses. • OK because all pages present & intended to be will. Blank signature lines on p. 6 irrelevant. • If original 6 pages in a different place, would fail integration test.

  35. Integration & IncorporationIncorporation by Reference UPC §2-510. Incorporation by Reference. A 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. Fl. Stat. § 732-512(1) Substantially the same Note that integration rule doesn’t apply when this doctrine is triggered, so separate writing doesn’t have to be present when will executed,

  36. Incorporation by Reference Will (Must Be Executed After Writing) Writing (Does Not Satisfy Wills Act) Incorporates

  37. Gifford v. Gifford 805 S.W.2d 71 (Ark. 1991) November 1986 Typewritten Codicil July 1986 Typewritten Will (Both Handwritten Notes Are Attached and Numbered Pages 1-4) I also give $5,000 to my former daughter-in-law, $2,000 to the First United Methodist Church of Rose Bud, $500 to the Baptist Church of Rose Bud and $500 to Ouachita Baptist University. June 1986 Handwritten Note (2 pages) I hereby leave [certain items of tangible personal property] to [specific people]. Signed, Mary Ella Gifford Jan. 1980 Handwritten Note (2 pages) I hereby leave [certain items of tangible personal property] to [specific people]. Signed, Mary Ella Gifford Does the July 1986 Will incorporate the January 1980 Handwritten Note by reference? [Reference to “earlier lists of 1973, 1976 and 1980.”] I first direct my Executrix hereinafter appointed to carry out the provisions of the handwritten bequest, which I have attached hereto and which was prepared by me in June of 1986, relative to items of personal property, which I want each of the children to receive.

  38. Integration & IncorporationIncorporation by Reference: Gifford v. Gifford • Does the July 1986 Will incorporate the January 1980 Handwritten Note by reference even though not explicitly mentioned? • Arkansas’ incorporation by reference rule states that a writing that is either (a) in the testator’s handwriting or (b) signed by her can be incorporated by reference if • (1) it’s in existence at the time the will is executed, • (2) the will manifests an intent to incorporate it, and • (3) the will identifies the writing with sufficient clarity.

  39. Integration & IncorporationIncorporation by Reference: Gifford v. Gifford • Does the July 1986 Will incorporate the January 1980 Handwritten Note by reference even though not explicitly mentioned? • Court finds intent & identification from: • Specific mention of June 1986 note, • 1980 note was stapled to the 1986 note, • 1980 numbered consecutively with the 1986 note • 1980 note attached to the will itself.

  40. Integration & IncorporationIncorporation by Reference: Problem 5.2 O dies leaving 2 documents in desk drawer: • Typewritten but not signed or witnessed: “I LEAVE MY [VALUABLE] STAMP TO MY DAUGHTER, ROBIN. DATED: MAY 1, 2009.” • Valid holographic will in state: “I want my wife, Kristin, to have everything (other than my [valuable] stamp, for which I have other plans) after I die. Signed: Owen Smith. Dated: Oct. 1, 2010.”

  41. Integration & IncorporationIncorporation by Reference: Problem 5.2 Is typewritten document enforceable (if no harmless error) • Integrated? Not clear if present when later document executed and integrating it would create a typewritten material provision, invalidating the holographic will. • Incorporated by Reference? Maybe O intended with reference to stamp (although looks like future not past), but document not identified at all.

  42. Integration & IncorporationLists of Personal Property UPC § 2-513. Separate Writing Identifying Devise of Certain Types of Tangible Personal Property. [Fl. Stat. § 732-515 mostly similar]: Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property [FL only “other than property used in trade or business”,]not otherwise specifically disposed of by the will, [Just UPC: “other than money.”] To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. ….

  43. Integration & IncorporationLists of Personal Property UPC § 2-513. Separate Writing Identifying Devise of Certain Types of Tangible Personal Property. [Fl. Stat. § 732-515 substantially similar]: … The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will. • Explicitly says doesn’t have to meet “independent significance” test. Why OK? Separate statutory authorization, plus presumably less problematic because not money (or intangibles) and not real estate.

  44. Integration & IncorporationLists of Personal Property: Moor (W197-99) Upholds (under both FL & Delaware Law) odd provision requiring executor to sell personal property & distribute proceeds to specific list of people. Useful primarily for further elaboration of doctrine in Qs/.Notes following case. I won’t test specific holding.

  45. Integration & IncorporationLists of Personal Property: Problem 5.3 Assigned to Last Names Q-W for Next Class.

  46. Integration & IncorporationDifferences between the Three Doctrines Integrationrequires the integrated document to be physically present at the time the testator executes the will (whereas incorporation by reference and the tangible property rule do not), Incorporation by reference requires the incorporated document to be in existence (whereas integration and the tangible property rule do not), and The tangible property rule requires the list of property to be signed (whereas integration and incorporation by reference do not have any such mandate).

  47. Classification of Devises Specific Devises: Gifts of specifically identified property. General Devises: Gifts paid out of the general assets of the estate; typically an amount of money but potentially a gift of stock or land. Demonstrative Devises: Gifts of a particular amount of money payable from a specified source. Residuary Devises: Gifts of anything that is not given away elsewhere in the will.

  48. Aldrich v. Basile136 So.3d 530 (Fla. 2014) E-Z Form Will (Validly Executed on Apr. 12, 2004) My property should be bequeathed in the manner following: Possessions listed to my sister, Mary Jane Eaton: — House, contents, lot at 150 SW Garden Street, Keystone Heights FL 32656 — Fidelity Rollover IRA 162–583405 (800–544–6565) — United Defense Life Insurance (800–247–2196) — Automobile Chevy Tracker, 2CNBE 13c916952909 — All bank accounts at M & S Bank 2226448, 264679, 0900020314 (352–473–7275). —If Mary Jane Eaton dies before I do, I leave all listed to James Michael Aldrich, 2250 S. Palmetto 114 S Daytona FL 32119. Just A Note [handwritten] This is an addendum to my will dated April 5, 2004. Since my sister Mary Jean Eaton has passed away, I reiterate that all my worldly possessions pass to my brother James Michael Aldrich, 2250 S. Palmetto, S. Daytona FL 32119…. /s/ Ann Aldrich /s/ Sheila Schuh [A witness] November 18, 2008 Does James receive the property that Ann inherited from Mary?

  49. Classification of Devises:Aldrich v. Basile Despite T’s clear intent, J doesn’t get anything beyond gifts listed. Residue passes through [partial] intestacy. • No residuary clause in original will • Addendum is not a valid codicil in FL because • Only one witness • FL doesn’t recognize holographic wills.

More Related