Will execution Ceremony
Kim Kardashian has a lawyer draw a will leaving everything to Kanye West. She signs alone with no witnesses. She mentions to her friends, posts on twitter, and blogs that she is leaving everything to Kanye. Kim dies of lip the next day. Does Kanye get everything?
Under a strict compliance, no.
Under substantial compliance, look at the facts:
- there are no witnesses
- But there is a will document that is signed
Not all factors in substantial compliance are met, so it fails. The factors are: are witnesses there, has the testator signed it, was there righting, and does it look like a will?
What is the factors that must be met for the dispensing power/harmless error adopted by the UPC?
1) the defendant's will
2) partial or complete revocation of the will
3) an addition to or an alteration of the will OR
4) a partial or complete revival of the descendant's formally revoked portion of the will
Benny created a will stating, "Everything goes to the red cross" on 09/01/08. Then, Benny created another will that stated, "My house goes to Salvation army" on 09/01/24. Where does the will go?
The house goes to Salvation Army and everything else goes to Red Cross. This is treated like an amendment to the will.
Stella makes a will that leaves “everything to snowball.” She then makes another will that leaves “everything to Ace”. On death, Stella's second will is found torn up.
Intestacy
Revival would also send this to intestacy because no evidence that will #2 is destroyed to bring back will #1 (the original will)
D makes a will, “I leave my shares to R fund.” then he leaves a typed note, “I want to amend my will and leave 200 shares.” D signed. Is this proper?
No, must redo the formalities. It cannot be a typed note.
What is the step by step process to ensure a successful will execution ceremony?
1) First think: you want this will to be good in all states
2) think of all reasons probate might occur (these steps are below)
3) might want to do a neuro exam on the testator
4) print the will out and fasten pages (no staple marks)
5) find witnesses (administration assistant in the firm are fine)
6) get everyone in the same room for execution
7) Ask the testator questions (such as: "do you recognize these documents? did you read it? is everything in accordance with your wishes?")
8) testator must sign the will (on a clean table, make sure everyone can see, only sign the last page)
9) witnesses will read attestation clause out loud and sing
10) the will is fully executed
11) Parties must sign self-proving affidavit (sign and paperclip to the back of the will)
12) Law firm can keep the will; even if testator keeps the will, the firm should keep a copy and advise testator to keep outside the house in a safety deposit box
Blake meets with a lawyer and looks over the draft of a will. He says, "I love it! This is exactly what I wanted! I'm going to get some lunch (fish, my favorite) and I'll come back and sign it at around 2:00 pm." He chokes and dies on the fish. Can the will be drafted?
Under strict compliance: no because there's no witnesses and no signature
Under substantial compliance: no because the protective function is not met (protective function: the law is concerned about manipulative schemers looking to take advantage of the old)
Under dispensing power/harmless error: yes! the writing is present, but there's no witnesses but the lawyer and the assistants were there! The only issue is this wasn't the final copy
Concerns: did Scissorhand cut the will on accident? On purpose? Or did someone else cut the will?
When the will is in testator’s possession and in a destruction state, we presume the testator mutilated it
Presumption of revocation physical act
Big B make a will that leaves “everything to Bert” he then makes a codicil that leaves his “nest to Ernie” Big B then tears up the codicil. Who gets what?
Bird gets everything.
Are these okay?
I leave the contents of my safety box to J.
I leave Luke the contents of safety deposit bod 101, B the contents of safety deposit box, & H the contents of safety deposit box 103.
All stocks and bonds found in my kitchen drawer I leave to W.
“I leave my car to L. I leave the rest to my kids.” At the time the will was written, D owns 1974 Yugo. Before D died, D trades the Yugo for a star destroyer.
“I leave my lightsaber to my administrative assistant.”
“I leave L the jewelry in my green jewelry box.”
Answers:
Probably okay! B/c somethings need to be in safety box.
Probably not hard to think of a reason. Other than to change around who gets what.
Probably bad: nothing shows that its safe; way to change testamentary (move stuff around)
Okay
Okay.
How many jewelry boxes are there? If two or more, not okay.
What is substantial compliance and what is strict compliance?
Substantial compliance: a doctrine that allows courts to overlook formal defects with the will execution if:
1) intent is to be a will- does the doctrine express the descendant's testamentary intent?
2) Does it satisfy the purpose of the formalities? (witnesses are there, signed by testator, writing, looked like a will)
3) does it's form sufficiently approximated the statutory formality
If any factors in substantial compliance fails, the entire thing fails
Strict compliance: if the law is not followed, you are screwed- the execution of a final testament must comply with the exact terms of the Wills Act
What is a conditional will?
a document that activates if you die from a particular event
ex: "I've upset the dean. If she runs me over, give my stuff to my wife."
Larry Lawyer mails properly executed will to Terry Testator via UPS. The doc gets lost in the mail. The testator dies. Can the will be probated?
No revocation bc no intent here
The will wasn’t in Larrys possession
Therefore, valid will.
But theres no will bc it was lost in the mail.
Prove up contents of the will, must show clear and convincing evidence (ex: copy of it)
Always make a copy of the will as the lawyer
B & W marry. Previous marriage have kids. Later they divorce. B dies without making a new will. Who gets B’s property? W was the executor.
Divorce spouse can’t take it!! Can’t be executor.
You’re a lawyer for Clowney. You go to his house to execute a will. You go through the formalities & you ask him a few questions to establish mental capacity. You come back next day & he is fine. Ethically can you execute the will?
Need a moment of clarity
So yes
Test that protects families
What are some reasons probate may occur?
1. lots of money
2. old people
3. blended family issues
4. interested witnesses
5. mental capacity
6. big changes to the will/ any causes of concern
What is a holographic will? What are some benefits and cons to holographic wills?
Definition: A handwritten document/ will that is signed with no witnesses.
Advantages:
1) cheap
2) private
3) easy to authenticate
4) good for emergencies
Cons:
1) Coercion
2) testamentary intent
3) doesn't know the law
4) accusation of deception
5) testator's lack of basic knowledge of estate planning (evidentiary function: do we know what they wanted?)
Ace's duly executed will makes three provisions:
1) I devise $20k to Snowball.
2) I devise $10k to Stella.
3) I devise the remainder of my estate to Benny.
Question #1: A day later, Ace crosses out the 2nd provision. Is the will still valid? Is provision 2 still valid?
Question #2: What if Ace blacks out provision 2? Is the will and provision 2 valid?
Answer #1:
Under common law, you would ignore the crossed out portion
Needed to redo the formalities. Since the testator didn’t, you ignore the crossed out portion
Answer #2:
Cancel the whole will.
We now recognize the “partial revocation by physical act” Scary bc anyone can cross something out, but technically, antone can burn something
H tells me that people are always admiring her stuff. How can she give to her admirers without having to take the time to make a will?
Holographic will or
Tell her to give them the items while she’s still alive
J had a sexual relationship. B (daughter) sends a DNA test from Mayo hospital (one of the best hospitals) and J calls the hospital. They confirm the results. He still refuses to see it as true. J leaves B nothing in his will. Insane delusion?
Good argument- these are facts that disprove his believe
But B can’t prove this knowledge affects J’s will disposition
What are the different approaches to interested witnesses?
Hint: There are 4 different approaches!
1.) Old common law: knocked down the will if interested beneficiary was a witness- you may not have a stake in the will
2.) Purging statute (generation purging states): purge all gifts of interested witnesses because they are not eligible
3.) Second generation purging: you don't always need to eliminate all witnesses; you only purge what would exceed under intestacy (this is AR's approach)
4.) UPC approach: doesn't care- take the full gifts; we have doctrines to handle these things and we shouldn't be mechanically purging gifts
What are the different approaches to holographic wills?
1) common law: the whole will must be handwritten- everything intended to be apart of the will must be handwritten
2) UPC material provision test: important stuff needs to be handwritten- you can pretend the typed portion is still apart of the will (date and introductory stuff can be printed)
3) UPC material portion: specifically says you should be allowed to show extrinsic evidence
What do you need to prove a revocation?
1) capacity
2) intent to revoke (through act or affirmative)
- Act: expressly (must meet the will's act) or implied
- Affirmative: phsyical act
Can add a revocation sentence in the new will
When there isn’t a revocation, but its implied, a new will wins! (the old will is revoked) even if not expressed
If a new will, without revocation, and a new will is destroyed, old will is not valid again.
What are the components of a will? What stuff counts as part of a will?
4 Important Doctrines
(1) Integration of Wills
All papers are present and intended as part of the will are part of the will
(2) Republication by Codicil
A validly executed will is treated as re-executed as of the date of the codicil
(3) Incorporation by Reference
(4)Acts of independent significance
Misrepresentation
Knowingly make a false statement
Intent to defraud
Mental state
Must have intended the misrepresentation for which changing the will was the foreseeable consequence
Result- Testator deceived; Testamentary scheme changed
Causation- Misrepresentation must lead testater to alter their testamentary scheme!