Protecting Testamentary Intent in Wills: Capacity and Formalities

1. UNIT TWO: WILLS CHAPTER 3 WILLS: PROTECTING TESTAMENTARY INTENT Problems 3(B)(1), 3:5, 3(C)(1)

2. Review Problem 3B(1) (Recap) What facts in the problem support the position that K lacked capacity when she signed the will? • Meds: K says sometimes can’t remember cancer • Having a very bad day/In and out of focus • Disease/Imminent Death • Discrepancies rte Assets (1st Prong of Trad’l Test)

3. Review Problem 3B(1) What facts in the problem support the position that K had capacity when she signed the will? Does Distribution in Will Make Sense? (I’ll Do)

4. Review Problem 3B(1) • Gifts Generally Make Sense/Natural Objects • Grandchildren: • K’s only relatives each named and get gift • Favorite gets more than others • Rational explanation for why relatively small gifts • Even if court thinks these are only Natural Objects, test only requires understanding who they are, not that they get whole estate • Alma Mater  Small Farm • Friends  Jewelry • ACS  Residue: Well-known charity re her disease (& may not be much left) • Coherent at Time of Signing (Evidence/Significance)?

5. Review Problem 3B(1) (Last Names A-D) What facts in the problem support the position that K had capacity when she signed the will? • Seems Focused at Time of Signing (Could be “lucid moment”) • must get it done; • tea to clear my head; • gotta do this right now • Signed in right place • Thumbed thru Will Before Signing (Significance?)

6. Review Problem 3B(1) (Last Names A-D) What facts in the problem support the position that K had capacity when she signed the will? • Thumbed thru Will Before Signing (Significance?) • Making sure it’s what she wants? Might be too casual/cursory • BUT she was sent copy already so maybe just quick check to make sure it’s same document QUESTIONS ON (3)(B) or Caacity?

7. Problem 3:5 (Last Names E-P) A few months after meeting Charlie, during one of her weekly visits, Sally presented Charlie with a fabricated obituary purporting to report the accidental death of Charlie’s son during a sales call in Asia. Grief stricken, Charlie executed a duly attested will leaving his entire estate to Sally. He died a month later. Assuming Charlie’s son can prove these facts, what is his strongest legal argument? When Charlie Met Sally (Part I)

8. Problem (Last Names E-P)When Charlie Met Sally (Part II) A few months after meeting Charlie, during one of her weekly visits, Sally presented Charlie with a document that purported to be his Last Will and Testament. The instrument devised Charlie’s entire estate to Sally. Seeking to trick Charlie into signing the document, Sally turned to the signature page and told Charlie he needed to sign a purchase order for a new collection of antiques he had planned to buy. Charlie signed the document and died a month later. Sally then forged the signatures of attesting witnesses and presented the instrument for probate. Assuming Charlie’s son can prove these facts, what is his strongest legal argument?

9. Review Problem 3C(1) (Last Names E-P) Thrust of Problem: • MM dying in great pain • CC, one of his care nurses is a devout Catholic and talks to MM constantly about religion, once talking him out of suicide when pain is very bad. • Subsequrently, he changes will to leave half his estate to Catholic charity. • CC is witness to will.

10. Review Problem 3C(1) (Last Names E-P) OKLA: Undue influence, by a beneficiary or on a beneficiary’s behalf, consists: 1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; or 2. In taking an unfair advantage of another's weakness of mind; or, 3. In taking a grossly oppressive and unfair advantage of another's necessities or distress.

11. Review Problem 3C(1) (Last Names A-B & W) Difficult Qs Raised by Problem: • Likely CC has influence & that she takes advantage of situation, but is what she does “undue” or “unfair”? • Should sincere “good faith” attempts to push religion on a dying person be UI? •  Should talking someone out of suicide be considered evidence of UI?

12. Review Problem 3D(1) (Last Names A-D & Q-Z) NEXT TIME

13. UNIT TWO: WILLS CHAPTER 4 WILLS: FORMALITIES Introduction & Section 4.1.1: Attested Wills

14. Wills Formalities Generally “Wills Act formalities” refer to the formal requirements for the creation, revocation, and revival of a will. • Some history in casebook pp. 113-14 (background for you) • Useful vocabulary you should learn on pp.115-16 • If will is created without the formalities required by state in Q, • Most states automatically reject the will (“strict compliance”) • Some states will probate the will under limited circumstances (Section 4.1.3 Next Class) Requires thinking about purposes for formalities.

15. Wills Formalities Generally “Wills Act formalities” refer to the formal requirements for the creation, revocation, and revival of a will. They serve four functions (see casebook @ p.114): • Protective function (ceremony and witnesses help to protect Testator (T) from fraud/duress/undue influence) • Evidentiary function (ceremony and witnesses provide evidence that will is authentic expression of T’s intent) • Ritual (“Cautionary”) function (ceremony impresses on T seriousness of what is happening=”Whoa, Dude” effect) • Channeling function (formalities help T to express intent in forms/language recognizable to legal system)

16. Formalities for Attested Wills • Attested Wills = Witnessed Wills as opposed to • Holographic Wills = Handwritten; about half the states allow (Section 4.1.2) • Non-Cupative Wills = Oral; a few states allow in limited circumstances (We’ll briefly touch on in Section 4.1.2) • Florida only allows Attested Wills (See Fl. Stat. §732.502(2))

17. Formalities for Attested Wills • Must be in Writing (true in every state for Attested Wills) • UPC § 2-502(a)(1) • Fl. Stat. §732.502

18. Formalities for Attested Wills • Must be in Writing [true in every state for Attested Wills] • Testator’s (T) Signature • Can be • by T; OR • in the T's name by some other individual in the T's [conscious] presence* and by the testator's direction. (All states do some version of this to address at least physically incapable Ts) • UPC § 2-502(a)(2) • Conscious presence = The T, through sight, hearing, or general conscious-ness of events, comprehends that the individual is performing the act • Fl. Stat. §732.502 (1)(a) [omits “conscious”]

19. Formalities for Attested Wills • Must be in Writing (true in every state) • Testator’s (T) Signature • Can be (i) by T; OR (ii) in the T's name by some other individual … • Some states (not UPC) signature must be at “end” of will • Fl. Stat. §732.502 (1)(a) • Purpose seems to be to prevent additional provisions from being added by someone else. • Creates Qs about what constitutes “end” • E.g. big space between last substantive provision and signature line • See Pennsylvania test: “logical and sequential end.”

20. Formalities for Attested Wills Some states (not UPC) signature must be at “end” of will • Fl. Stat. §732.502 (1)(a) • Creates Qs about what constitutes “end” • In re Schiele’s Estate, 51 So. 2d 287 (1951): The case upholds a will against a challenge that it wasn’t signed at the end where the testator’s signature followed the attestation clause (where the witnesses sign), rather than following terms of the will. The court noted that many courts say the requirement is fulfilled as long as signature is “below all the disposing portions of the will.”

21. Formalities for Attested Wills • Must be in Writing (true in every state) • Testator’s (T) Signature Requirements • Witnesses • Number • Some states require at least 3 • Some states: at least 2 • UPC § 2-502(a)(3)(A) • Fl. Stat. §732.502 (1)(b)

22. Formalities for Attested Wills • Must be in Writing (true in every state) • Testator’s (T) Signature Requirements • Witnesses • Number • Some states require at least 3 • Some states: at least 2 • UPC § 2-502(a)(3)(A) • Fl. Stat. §732.502 (1)(b) • UPC § 2-502(a)(3)(B) & a few states: can replace with notary

23. Formalities for Attested Wills • Must be in Writing (true in every state) • Testator’s (T) Signature Requirements • Witnesses • Number (some states 2+, some states 3+) • Rules re T’s Signature (precise language varies) • Must witness or be in the presence of … • T’s signing or acknowledging the signature or the will

24. Formalities for Attested Wills Rules re T’s Signature (precise language varies) (a) Must witness or be in the presence of … (b) T’s signing or acknowledging the signature or the will • UPC § 2-502(a)(3)(A): Must “witness[] either the signing of the will … or the T's acknowledgment of that signature or acknowledgement of the will” • 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. • UPC

25. Formalities for Attested Wills • Must be in Writing (true in every state) • Testator’s (T) Signature Requirements • Witnesses • Number (some states 2+, some states 3+) • Rules re T’s Signature (precise language varies) • Witnesses’ Signatures Required (rules vary) • UPC§ 2-502(a)(3)(A): Must sign “within a reasonable time after the individual witnessed either the signing … or the T's acknowledgment” • Fl. Stat. §732.502 (1)(b): “[M]ust sign the will in the presence of the testator and in the presence of each other.”

26. Formalities for Attested Wills • UPC§ 2-502(a)(3)(A): Must sign “within a reasonable time after the individual witnessed either the signing … or the T's acknowledgment” • Fl. Stat. §732.502 (1)(b): “[M]ust sign the will in the presence of the testator and in the presence of each other.” • Note that both “reasonable time” and “presence” (here and with regard to the T’s signature) leave room for debate. • (2) Jordan v. Fehr, 902 So. 2d 198: Witnesses NOT in each others’ presence when one was in an adjoining room when the other signed the will. The presence requirement means that the witnesses must be in the “immediate vicinity” • (3) Bain v. Hill, 639 So 2d 178: Upheld a will where witnesses signed the will before the testator did, where all of them sat at the same table and signed in the presence of each other.

27. Formalities for Attested Wills:Estate of Henneghan • Straightforward case applying “strict compliance” in D.C. • No notarization option; 2 witnesses must sign in the presence of T • No witnesses signed here, so will fails • Probably defeats T’s intent • Affidavit of Eugenia R, who was present in the open reception area of the notary’s office and saw Sarah execute her will • No signature at the time, so no good • PLUS seeing T signing across the room not same as knowing T’s intent to make will

28. Formalities for Attested Wills: Problem 4:1 M = Disabled T, Types Out Will & S (niece) Takes Him to Former Jobsite TR = Notary Public, Agrees to Witness S & TR watch while M signs with “X” because of disability TR takes signed will into separate room leaving M & S There D & B agreed to witness will & signed it, TR then returned will to M, who died 3 weeks later

29. Formalities for Attested Wills: Problem 4.1 M = Disabled T, Types Out Will & S (niece) Takes Him to Former Jobsite TR = Notary Public, Agrees to Witness S & TR watch while M signs with “X” because of disability Statute given requires that T sign “in such manner as to make it manifest that the name is intended as a signature.” • Caselaw says “X” is OK if intended as a signature, which looks to be the case here

30. Formalities for Attested Wills: Problem 4.1 M = Disabled T, Types Out Will & S (niece) Takes Him to Former Jobsite TR = Notary Public, Agrees to Witness S & TR watch while M signs with “X” because of disability TR takes signed will into separate room leaving M & S There D & B agreed to witness will & signed it, TR then returned will to M, who died 3 weeks later Statute given requires that T’s “signature … be made … in the presence of at least two competent witnesses, present at the same time; and such witnesses shall subscribe the will in the presence of the testator, and of each other.”  Will Fails • S & T never signed • D & B weren't there when M signed

31. Formalities for Attested Wills: Problem 4.1 M = Disabled T, Types Out Will & S (niece) Takes Him to Former Jobsite TR = Notary Public, Agrees to Witness S & TR watch while M signs with “X” because of disability What if UPC applies instead of given statute? • Can notarize instead of having witnesses, but TR didn’t notarize will • UPC also requires witnesses see T sign, so B & D no good. • UPC allows witnesses to sign “a reasonable time” after watching signature. Casebook author suggests that it is plausible that S & TR can meet this test by signing even though month has passed & M is dead. Argument might be that signing is pretty fresh in their memories. QUESTIONS?

32. Problem 4:2 = Last Names A-D & Q-Z NEXT TIME

33. Formalities for Attested Wills: Problem 4:3 Asked if Examples Given are Valid Under UPC §2-502(a)(1) and (2) • The words “I leave everything to my friend, Fred,” written on the testator’s bedroom wall in pencil, with the testator’s signature written below in blue marker. [“The writing is on the wall!!”] • In Writing? UPC Comment says “The requirement of a writing does not require that the will be written on sheets of paper, but it does require a medium that allows the markings to be detected.” • Not clear if witnessed. If properly witnessed, should be valid.

34. Formalities for Attested Wills: Problem 4:3 Asked if Examples Given are Valid Under UPC §2-502(a)(1) and (2) (c)A typewritten will prepared by T on a word processing program and saved on T’s hard drive; the text of instrument is written in Times New Roman font while the T’s name appears at the end of the document in cursive font; not printed before the T’s death. • In Writing? Electronic communication considered binding writing for many purposes, but lots of problems here. Difficult to know if version you have is T’s final version or a draft or someone else’s forgery. • Signature: If this is a writing, different font suggests intended to be signature so OK.

35. Formalities for Attested Wills: Problem 4:3 Asked if Examples Given are Valid Under UPC §2-502(a)(1) and (2) (e)A typewritten will printed on thick stationery; the testator signed “Big Daddy” at the end instead of using his name, Harvey Pollitt; the will was also signed by two witnesses. (See T. Williams, Cat on a Hot Tin Roof) • Signature. UPC § 2-502 Comment j provides, “Ideally, the testator ‘signs’ the will by writing out his or her name in full. Signature by mark or cross is sufficient, however. So also is signature by term of relationship (such as ‘Dad,’ ‘Mom,’ or ‘Auntie’), abbreviation, nickname, a pet name, a first name, a last name, initials, or pseudonym, or even by fingerprint or seal. …The crucial requirement is that it must be done with intent of adopting the document as the testator's will.” (so looks OK here)

36. Formalities for Attested Wills: Problem 4:3 Asked if Examples Given are Valid Under UPC §2-502(a)(1) and (2) Not responsible for (b) (d) & (f)

37. Formalities for Attested Wills: Witness Competency A witness is generally competent if able to observe, remember, and relate the facts occurring at the will execution ceremony. But what if the witness is also a beneficiary? • Most states: interest of interested witness is purged BUT • UPC §2-505(b): The signing of a will by an interested witness does not invalidate the will or any provision of it. • Fl. Stat. §732.504(2): A will or codicil, or any part of either, is not invalid because the will or codicil is signed by an interested witness.

38. Formalities for Attested Wills: Attestation Clause • An attestation clause recites the circumstances surrounding the will’s execution from the witnesses’ perspective. • Its purpose is to memorialize the witnesses’ observation of an authentic and voluntary will execution. • Attestation clauses are customary, but not required. • Establishes a rebuttable presumption of a will’s validity.

39. Formalities for Attested Wills: Self-Proving Affidavits • A self-proving affidavit looks similar to and serves all the purposes of an attestation clause. • Because the affidavit is sworn and notarized, it also provides admissible evidence of due execution without further testimony of attesting witnesses. • It is customary to prepare a self-proving affidavit at the time of execution because wills are often probated many years later.

40. Estate of Griffith • Will was signed by T and two witnesses (as well as the notary public). The will contained a “certificate” and an “affidavit of subscribing witnesses,” both of which were also signed by the two witnesses. • When will was contested, witnesses denied that they knew at the time that document was T’s will. Proponent offered no evidence that witnesses knew the document was a will. • Majority, following existing caselaw, says insufficient if attesting witnesses unaware that document is will. • Dissent notes caselaw saying that testimony of attesting witnesses denying the execution of the will is entitled to little credence and worries that opponents of the will can win by suborning one witness.

41. Estate of Griffith • Authors say morals of story are importance of: • (1) selecting reliable witnesses; • (2) advising the witnesses of their role in the will execution ceremony (helpful to have T explicitly identify document as will); and • (3) writing a memo to the client file summarizing the performance of the will execution.