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Philosophical Justifications and Limitations, Policy of Passing Wealth at Death

Against Conveyance Limitations Free County people ought to dispose of property as they choose Economics Allows for a savings base to provide for capital investment Locke natural right For Limitations Prevent concentration of wealth in a small number of people Equal Opportunity America! Jefferson/Blackstone Not a natural right, not constitutionally protected

Dead Hand Control

Controlling property beyond death. Traditional law respects the property rights of the decedent. Its allowed to an extent (e.g. RAP). But to what extent should the dead hand control behavior? Restatement (3rd) of Property 10.1 Donors intention determines the meaning of a donative document as is given effect to the maximum extent allowed by law: The controlling consideration in determining the meaning of a donative document is the donors intention. ~ Maximum extent by law. Public Policy on Restrictive Conditions any provision that is intended or tends to encourage disruption of the familial relationship generally. Covenants that restrict fundamental rights are generally void (e.g. restricting practice of religion, right to marry) Gifts that are conditioned on marrying within a particular religious class or faith are reasonable [Shapira]. Reasonableness depends upon age of devisee, number of available women in area, etc. Gifts that end after remarriage justified that T can support the spouse as long as needed. Restraints generally depend on the facts and circumstances Incentive Trusts Often are educational incentives encourage beneficiary to get a degree Moral incentives upheld because of the benefits. Concern: You dont want Paris Hiltons running around.


Newman cannot understate the importance of the distinction between Probate and NonProbate Assets. Most stuff passes non-probately. UPC doesnt make the distinction. Probate Passes through will or intestacy Requires Court Proceedings Expensive Non-Probate Instrument other than a will Generally only need a death certificate Joint-tenancy, life insurance, contracts w/ payable death provisions. Interests in trusts.

Terminology Testate Executor; Intestate Administrator; UPC Personal Representative


Functions of Probate Determines who gets the property, acts as Evidence of transfer of title to the new owners (clears titles); 2. Protects Creditors establishes procedure for payment a. These people come first (funeral expenses, administrative, court costs, taxes, bills, etc) funeral costs have top priority 3. Distributes Property

Procedure Determine Decedents domicile primary, ancilliary Determine Form of Probate Common Form ex parte, no notice, by oath.

Solemn Form involves court, with notice

Tension level of supervision required of the Probate Court high supervision vs. independent control of personal rep. UPC accommodates for both situations Creditors Statute of Limitations non-claim statutes 2 forms Bars claims not filed in relatively short time ~ 2-6 months. Regardless of whether probate proceeds 1-5 years after death Notice to creditors required (DPC) Closing the estate discharge by court to relieve fiduciary duty/liability of rep Costs Probate & Attys fees. Commissions to rep, guardian ship, appraiser.

Necessity Probate can be avoided by non-probate transfer

Intervivos Trust or Joint Tenancy transfer Personalty title isnt necessary, generally Cars can get rights of survivorship w/o probate.


Duties to Intended Beneficiaries

Malpractice Duty runs from drafting attorney to an intended beneficiary a. Identified beneficiary has third-party beneficiary status. i. (Minority) Ohio doesnt recognize this duty wants attorney to have an undivided duty. b. Rationale: Duty is based in foreseeability of injury to the intended beneficiary.

Conflicts of Interest
Duty of Confidentiality isnt absolute fraud exception material circumstances that could seriously injure one client or cause substantial detriment


Basic Scheme Intestate rules are the default rules. Its the Assumed intent of the average intestate decedent. They apply unless theres a will or your property passes via will substitute. Secondary ~~ family protection ~ but to get around , all you need is a will. 2. Statutory Regime Notice given to heirs. Heirs have right to sue if they get less than statutory amount. Domicile of decedent determines JD. Terminology Heir person who takes via intestacy, determined by statute. Exists only at death Heir apparent have expectancy of inheritance Descendant children, grandchildren (Issue) Order of taking Spouse Descendant (Per Stirpes/UPC) Ancestor 1st Line Collateral 2nd line Collateral
1. 3.

Fiduciary Duties cannot draft will for someone who lawyer believes incompetent.

UPC: 2-102. Share of Spouse: The intestates share of a decedents surviving spouse is:
the entire intestate estate if: (A)No descendant or parent of decedent survives decedent, or; (B)All of the decedents surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent; 2. The first [$300,000], plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent; 3. The first [$225,000], plus one-half of any balance of the intestate estate, if all of the decedents surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who arent descendants of decedent; 4. The first [$150,000], plus one-half of any balance of the intestate estate, if one or more of the decedents surviving descendants are not descendants of the surviving spouse.

Simultaneous Death Act (of Spouses)

UPC 120-Hour Rule Treats spouse as having predeceased the decedent. doesnt have to be common disaster. Probate & Non-Probate Rationale experts are costly, fighting over timing is costly. Ts intention honored this way. Ohio applies to Probate, silent on Non-probate. Janus v. Tarasewicz H & W eat some poison, life insurance pays out to wifes estate. Issue over who died first. Check up from the neck up brain dead = dead first.

Shares of Descendants
English Per Stirpes

Modern Per Stirpes

Followed by 1/3 of the states Treats each line of descendants equally, divided into as many shares as there are living children. Children take by Representation.

Half the States Treats equally each line at the closest generation (living) Look to see if any children survived D. If Yes English If No Divide equally at that generation shares drop down to Children.

UPC Per Capita at Each Generation Dozen or so states Rationale its likely the intention of D is not to treat grandchildren differently. Treats each taker at each generation equally Initial division made at first surviving generation.

Negative Disinheritance

Rule in most states if devisee doesnt get it under the will, he can take residual property that didnt pass by intestacy UPC 201 (b) Barred heir is treated as if he disclaimed his intestate share, which means hes treated has having predeceased the intestate decedent.

Shares of Ancestors and Collateral

1. Collateral Kindred Blood related, but neither ancestor nor descendant a. First line collateral descendants of the decedents parents other than decedents descendents. b. Second-line collateral descendants of the decedents grandparents (other than the decedents parents and their descendents) c. If decedent is not survived by spouse, Parentelic System Degree of Relationship UPC Estate passes to grandparents, and Estate passes to the If decedent has no closest of kin, which is their descendents. If none descendants/ancestors determined by counting grandparents, etc, down each line Step children escheat descended from an ancestor until an degrees of kinship. heir is found. UPC + Large Maj. Half Bloods = Full (Ohio,

Laughing Heir so distantly related, too) Count steps up from D to laughing to the bank. nearest common ancestor, FL, TX = Share then count down. OK = Excluded if full. Ohio parentelic to grandparents degree of relationship stepchildren escheat. Transfers to Children - Meaning of Children Goal is to protect intent of T. Difficult to predict with complex families.

UPC Rule an adopted individual is a child of his or her adoptive parents. Exceptions: If adoption removes the child from the families of both of the genetic parents, the child is not a child of either genetic parents If adoption is by relative ~ severs the relationship, except that the child can inherit through the genetic parents, but not vice versa If adoption is by stepparent, the adopted stepchild is not only a child of the adoptive stepparent, but is also a child of the genetic parents. UPC 2-114(b) the adopted stepchild is also a child of the other genetic parent for purposes of inheritance from or through the child, but not for purposes of inheritance from or through the child Restatement - 2.5 UPC 2-116 Parent-Child Relationship ~ adoptions by stepparent or Key determination is whether family member, retains inheritance. there is a parent-child Natural parent cant go through child for inheritance, but relationship. If yes, then they equal a child can go through parent. Adoption out of family no parent-child for intestate inheritance from natural. succession.

Adult Adoption most intestacy statutes dont distinguish child and adult adoptee.

Minary v. CFB Minary dies leaving residue in trust to pay income to sons last surviving son dies, pays out to heirs under law. Son adopts wife. Held: adoption of an adult for the purpose of bringing that person under the provisions of a pre-existing testamentary instrument when she clearly wasnt intended to be covered should not be permitted. Cases / Jurisdictions are split on the Minary issue. Adoption & Interpretation barring a statement by the intestate decedent, adopteds are issue.

Posthumous Children Posthumous Born Children - Conceived before but born after fathers death. Childs advantage to be considered in being at conception Posthumous Conceived Children Conceived Uniform Parentage Act 204 - Rebuttable presumption that normal period of gestation is 280 days. Burden on proof on child. 300 days

Non-Marital Children - out of wedlock Trimble v. Gordon treating bastard kids differently is against EPC, intermediate scrutiny. Most states amended intestacy statutes to include bastard kids. Lalli v. Lalli upheld NY statute permitting inheritance by a nonmarital child from the father only if the father had married the mother or had been formally adjudicated the father by a court during the fathers lifetime JDs Split on father inheriting from the kid. Reproductive Technology and New Forms of Parentage Posthumous Children Rule Donor must: clearly and unequivocally consent to posthumous reproduction and the support of any resulting child. Burden is on the surviving parent to prove both. Woodward v. SS H has disease, sperm frozen, dies, M uses it have 2 kids. SS argues not in being. Are they Issue? Held: Child may be issue under certain circumstances. UPC 2-120 Signed writing, or consent is otherwise proved by clear and convincing evidence (intent) AND the child is in utero not later than 36 months or is born not later than 45 months after Ds death. Restatement must be born within a reasonable time to treated as conceived before death. Tension certainty and finality vs. the human desire to bear children. In re Martin B. trust set up, son James dies, but has kids from frozen sperm. Are they issue? Held: They are, J intended the kids to be born. Certainty and finality arent an issue since trust administration is on going. Assisted Reproduction and Same-Sex Couples: (rising issue.) 2008 amendments to the UPC(2-120) a child conceived by assisted reproduction other than gestational surrogacy is in a parent-child relationship (and entitled to inherit by, from, or through), the childs birth mothercan also be parent-child relationship with another person if the other person either consented in writing to assisted reproduction by the birth mother with the intent to be the other parent of the child or functioned as a parent of the child within two years of the childs birth.

Common Law Rule (minority) any lifetime gift to child presumed to be an advancement. Burden on the taker to show that it isnt an advancement. There must be no quid pro quo.

If LOAN > Share Child pays back money to estate If ADVANCEMENT > Share Child keeps. Rationale assumed that parent would want each kid to have equal share during lifetime 1. Some states presume that any lifetime gift is not an advancement If GIFT hotchpot. Ex. O A, B, C. $10K goes to A as an advancement in life. O has $50K in assets. Add the advancement plus

Criticisms: intent isnt really clear (gift could be b/c of favoritism). Also, given avg. life expectancies, finding out Education isnt normally an advancement, but what about grad school

UPC 2-109 Transfer is only considered an advancement if D declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement or the gift is taken into the account and distribution of the estate If taker dies before D, the property isnt taken into account in computing the division and distribution of Ds estate unless D writes otherwise. Rationale most of the time, parents make gifts, they dont consider it will effect the distribution of the estate Avoid evidentiary issues of intent


1. Guardian of the person parental rights over the minor, responsibility for the minor childs custody & care responsible for care of child, not property Guardian of person terminates Majority reached, Dies, Adopted. Natural Guardian of Child One Parent Living Property held in trust with another relative One Parent is a Deadbeat Court appointed guardian, usually relative Both Parents Dead

Property Management Options

Type Guardianship of Property Features Strict court supervision, expensive and time consuming. Court approval required for any action Creation Intestate court appoints guardian. If small estate administrator. Will requires guardianship if not minor. Will nominates, Court appoints. Same as above.




Modern Streamlined Guardianship, flexible, annual accounting (main difference between this and guardianship) Custodian has F/D required to xfer property to child (18/21) Custodian has right to manage property/reinvest, no accounting reqd. Good for small estates. Trust Instrument sets rules restricted only by Public Policy & RAP. No Court supervision. Trustee is fiduciary Beneficiary would have to sue if blowing money, stealing

Created by Will Substitute one size fits all a poor mans trust. Dictated by statute. Most states, terminates @ 21

Slayer Statutes Treats slayer as predeceasing the decedent. As if they had disclaimed. Rationale cant benefit from your killing a. Other similar statutes abused elderly or abandoned spouse. b. Majority view & UPC 2-803 killer is predeceased disclaim. Acquittal isnt dipositive, as the standard is Preponderance of Evidence (conviction requires PBRD, plea agreements to lower charge.) i. OH and UPC apply this to will substitutes. c. In re Estate of Mahoney intestate D killed by widow. No slayer statute. Court comes up with the idea of Constructive trust for heirs/next of kin. To be held by slayer in trust. d. Voluntary v. Involuntary Act Intent = Forfeiture; No intent = No forfeiture. UPC 9-803 2. Disclaimer If person disclaims treat the disclaimant as though he predeceased the Decedent. a. UPC doesnt allow for manipulative disclaimers b. Drye v. United States Dryes mother dies, owes 325K to IRS. Disclaims to daughter. Held: Disclaimer is control, and because he could control the property. Disclaimer doesnt mean shit to the IRS. c. Medicaid Need based for the poor So can you disclaim inheritance to get Medicaid? Troy v. Hart legally entitled to inheritance cant disclaim


Mental Capacity capability, not actual knowledge allows for reasonable mistake. If intelligence were the standard, most people wouldnt be able to write a will. a. Basic Test Restatement (18 or older) and must be capable of knowing and understanding in a general way i. The nature and extent of property ii. The natural object of his or her bounty iii. The diposition that he or she is making of that property iv. Must be capable of relating these elements to one another and forming an orderly desire regard the disposition of the property b. Presumed Competent c. Natural Objects of her Bounty not a precise term ~ these are people you to ought to have in mind who get your stuff when you die. d. Lucid Interval defense to capacity claims lucid on execution. 1. Burden of Proof a. Majority Rule Once Proponent shows prima facie evidence of due execution, the burden is on the Contestant to show incapacity. i. Wilson v. Lane C challenges capacity of T, same as Washburn where $$ goes to caretaker. GA test capacity if she has sufficient intellect to enable her to have decided and rationale desire as to the disposition of her property. Court sees evidence as showing eccentricity but not incapacity.

b. Minority Rule Proponent shows due execution, then Contestant must bring forth some evidence to show lack of capacity. Burden shifts to the Proponent to show capacity i. In re Estate of Washburn (NH) niece challenging will, T has 3 wills, most recently leaving estate to caretaker. Proponent (Caretaker) could not meet burden evidence: ALZ, 2nd/3rd wills were 3 weeks apart and totally different. Ws say niece should get house. 2. Capacity Threshold Low standard. Marriage has a lower standard. Contracting has higher standard.

Insane Delusion

2. 3. 4.


To prevail in an insane delusion contest, in most jurisdictions, the contestant must show that (1) the testator labored under an insane delusion, and (2) the will or some part thereof was a product of the insane delusion (causation) Majority view A persistent belief in that which has no existence in fact, and which is adhered to against all evidence. Majority Test Even if theres a factual basis for it, if it so minimal, that no rational person would reach the same conclusion based on that minimal evidence insane delusion. Causation materially affect the will vs. might cause a. Breeden v. Stone druggie hit and runs someone, knew police were on to him, barricaded and went on a binge wrote holographic will before suicide, left it all to dealer. Held: Will valid, insane delusion didnt materially affect the disposition of the will. b. Other jurisdictions Causes is easier to show if it might have an affect on disposition, its enough. Partially Affected Will the part affected is thrown out.


Introduction may occur with or without confidential relationship Proof is mostly inferential and circumstantial. Influence can be from beneficiary or 3rd party imputed to the beneficiary. Parts of will made under influence may be stricken same goes for intervivos transfers. 2. Undue Influence mental or psychological influence that overcomes the testators free will to where the document that is executed doesnt reflect Ts true testamentary object/desire. Influencer substitutes his/her own will. a. Factors i. Inference of UI (distinguished from presumption) ii. Susceptibility is required in most JDs

Restatement Property Donative Transfers 8.3 b. Donative Transfers are invalid to the extent that it was produced by undue influence c. UI Wrongdoer exerted such influence over the donor that it overcame the donors free will and cause the donor to make a transfer he might not have.

d. Commentary age, inexperience, dependence, weakness. Wrongdoer doesnt have to present during execution. Circumstantial evidence is sufficient to raise an inference of UI if contestant proves that i. donor was susceptible to UI ii. wrongdoer had an opportunity to exert UI iii. wrongdoer had disposition to exert UI iv. (Cause) there was a result that appeared to be the effect of UI. 3. Presumptions and Burden Shifting a. Burden of Proof i. Majority Contestant of will has burden of proving undue influence. Once propronent shows due execution, contestant has burden to show UI ii. Must generally show facts that give rise to the presumption - confidentiality + something else (suspicious circumstances). b. Presumption of Undue Influence [PA] (Estate of Lakatosh) to trigger burden shifting presumption contestant must prove by clear and convincing evidence that theres (1) Confidential Relationship (2) Person enjoying relationship received bulk of the estate (3) Ds intellect was weakened. i. If Presumption not allowed, then you had to prove with direct evidence (impossible) c. Confidential Relationship Fiduciary, reliant, dominant-subservient i. Fiduciary atty-client, etc. ii. Reliant Question of fact contestant must prove that there was a relationship based on special confidence and trust. ~ Donor was accustomed to relying on judgment advice of wrongdoer [Lakatosh advisor, counselor, confidant] iii. Dominant-subservient caregiver, adult child of Testator; Kaufman d. Suspicious Circumstances Maj. Requires this; some JDs just require that the influencer procured the will. i. Restatement list of Suspicious Circumstances (non-exhaustive) 1. Weakened/Susceptible 2. Level of wrongdoers involvement 3. Whether independent advice was received 4. How will was prepared - Secrecy or haste 5. Change in Donors attitude 6. Discrepancy in old and new will 7. Continuity of purpose running through former wills indicating a settled intent in disposition of property 8. Would a reasonable person see the disposition of property as unjust ii. Lakatosh Bulk of estate going to confidant + Ts weakened intellect iii. Moses Bulk of estate + disfigured old spinster alcoholic e. Rebutting the presumption of undue influence i. Evidentiary Standard 1. IA requires grantee to prove by clear and convincing evidence that the grantee acted in good faith, grantor acted VIK.. 2. CA for care custodians auto-invalidity

Independent Advice Moses lawyer just acting as a scrivener, didnt inquire as to why she was changing her will not advice. Dissent says lawyer did everything required. iii. Much is dependent on the Factfinders bias 1. E.g. In re Kaufmans Will same sex relationship, acted as couple. T made wills increasing gift, etc. Two jury trials pliable and easily taken advantage of, finds dominantsubservient relationship. 4. No Contest Clauses beneficiary who contests the will gets nothing (or token amount) a. Discourages will contests by giving prospective contestant the choice of taking either the certain (smaller amount) vs. larger amount by trying to invalidate. i. Conflicting Policies 1. Discourages Meritless litigation, family fights, defamation of testators reputation. 2. INHIBITS possible meritorious claims on lack of capacity and UI. ii. Majority enforces unless Probable Cause for contest. 1. UPC 2-517, 3-905 recognizes PC. iii. Some JDs dont enforce (IA, FL) iv. Other JDs enforce, but limit it to claims of forgery or subsequent revocation by later will or codicil, or if provision is benefiting the drafter of the will 1. Rationale general PC Rule encourages litigation and shifts the balance unduly in favor of contestants. 5. Bequests to Attorneys Presumption of UI Rebutted by Clear and Convincing Evidence. a. NY Attorney must submit a facts and circumstances affidavit of the gift if judge not satisfied hearing on UI b. CA Statute invalidating transfer (like caregiver) unless related by blood or marriage, except if theres an independent lawyer who attaches a certificate of independent review. c. OH relative yes; non-relative you cant get the gift. d. Many Jurisdictions presumption of undue influence when drafter gets gift i. Rebuttable by clear and convincing evidence


Two Types a. Fraud in the inducement T knows she is making the will, knows the terms, but induced to make the will fraudulently b. Fraud in the enactment T is ready to sign, but thinks something its not substituted will or wrongdoer tells T that its a document that needs to be signed, not her will. 2. Elements Fraud requires misrepresentation a. Knowingly made; b. Material Misrepresentation c. Intent to deceive d. Actually deceives e. Causation that the testamentary action was taken (execution, revocation, provision) f. Damages must exist.


Puckett v. Krida caretakers preyed upon T, feared going to nursing home. Lied to her about her sister (wasting money, etc). Exerted control on her, deluding her. Nurses say theres no proof, but sister kept good $ records. Court held there was fraud Nurses had limited info to T and b/c they concealed their acts (intent).

1. 2.

Undue Influence that becomes overly coercive. Elements a. Wrongdoer threatens to perform or did perform b. A wrongful act c. Coerced the donor into making a donative transfer d. Causation - Testator would not have made this transfer


Intentional interference with an expectancy is not a method of will contest- it is a tort action. It is a separate proceeding. If the plaintiff wins, he does not recover from the estate, but from the wrongdoer (although he may be indirectly compensated from the estate. In many jurisdictions, there is a relatively short period of time in which you can file a will contest. Since this is a separate claim, that statute of limitations would not apply to this tort. Punitive damages may be allowed for this tort claim, which are not allowed for a will. Also, this would not likely violate a no-contest clause, because it is not contesting the will (although you would have to check the no-contest clause to see if it specifically included this.) 2. Not all JDs recognize this tort (it is a newer tort.) 3. Shilling v. Herrera - This case actually had two layers: undue influence, then the caretakers conduct to keep him from finding out about the probate. T had 2 wills. First will estate brother. Second will estate to Herrera (caretaker). Caretaker didnt inform Brother of will change. FL would have required notice of change to heirs, caretaker was executor and didnt inform 4. Elements: a. Must be an expectancy b. Intentional Interference w/ Tortious Conduct c. Causation d. Damages

WILLS EXECUTION 1. Formalities (1) In writing; (2) Signed by the Testator; (3) Attested by witnesses a. Applies to Wills, Codicils, Revocation, Republication (by Codicil) b. Certain JDs require subscription (signed at the bottom). 2. Purpose of Formalities a. Evidentiary Function Reliability in the proof that is offered. b. Channeling Function Easier to determine a persons wishes at death if those wishes are recorded in a standardize form. Everyone knows how to do it. c. Protective Function protects T from fraud, duress, etc. d. Cautionary Function Lets T know that this is serious. 3. Exceptions

a. Holographic b. Nuncapative (Oral) c. Notarized (UPC) d. Dispensing Power / Harmless Error e. Substantial Compliance 4. Attested Wills a. Traditional Rule Strict Compliance i. In re Groffman signature must be acknowledge witness must see signature. ii. Stevens v. Casdorph no probate because two witnesses not present upon signing UPC WVs Ohio Presence Requirements T signs or acknowledges in presence of Ws Yes Yes Yes W sign in Ts presence No Yes Yes W must be in each others presence when T signs No Yes No W must be in each others presence when Ws signs No Yes No Proxy must be in Ts presence when the proxy signs Yes Yes Yes b. Line of Sight Test Must be able to see T doesnt have to see signature, just see W (Some JDs) c. Conscious Presence Test not just sight, but hearing or general consciousness of events T comprehends that the witness is signing d. UPC 2-502(a) adopts conscious presence test, does away with witness presence requirement 5. Signature evidences finality; serves evidentiary purpose a. Intent a mark put on paper to validate that its your will is valid b. Full name generally satisfies. c. Dependent on statute d. Placement most JDs dont have requirement where it is (nor the UPC) i. Subscription or Addition after signature some state require that T sign will at foot or end. ii. Ohio signed at end; invalid unless codicil or administrative provision (not dispositive provision) e. Order of signing generally T signs first i. Restatement & Ohio valid as long as its a continuous transaction f. Delayed Attestation Witnessed but doesnt immediately sign i. UPC reasonable time ii. NY 30 days iii. CA Before death + harmless error rule 6. In writing Paper valid [reasonably permanent record] ; Electronic invalid; Video ambiguities and inconsistencies abound when T starts talking about disposition of assets a. Some states allow as evidence of Due Execution, but not as will b. UPC is Silent. 7. Witness Requirement Purging Statutes purges excess gift under will vs. intestacy witnesses ought to be disinterested not receiving T gift. Not an issue of wills validity, but an issue of who takes. a. NY - Estate of Morea if a witness would receive less under will than under intestacy, its likely that that Witness isnt an interested witness.

b. MA regardless of share, interested witness gets nothing c. CA rebuttable presumption of fraud, UI. d. UPC & Minority interested witness doesnt forfeit his bequest even if its greater than which he would have received under a prior will or by intestacy. Rationale innocently performed. Recommended Method of Executing a Will 1. Society is increasingly mobile best way to execute is by complying with the strictest formalities 2. Recommended a. Fasten all pages together, specify pages. Lawyer confirms that T understands/read will. Lawyer + 2-3 Witnesses + Notary. b. Lawyer asks (1) your will? (2) read/understand? (3) does it dispose of your property according to your wishes? c. L tells T to request sigs; Ws should watch; initial each page, 1 W reads the attestation clause aloud. Self proving affidavit at the end. Lawyer memorializes with memo. 3. Safeguarding the Will a. Concerns with clients taking original lost, changed, heir could destroy b. Common for lawyers to keep original cons changes require you to go to lawyer EXCEPTIONS TO STATUTORY REQUIREMENTS: CURING DEFECTS IN THE EXECUTION OF ATTESTED WILLS 1. In re Pavlinkos Estate H&W mistakenly signed each others Wills. Court refuses to probate example of strict compliance 2. Ad Hoc Exceptions a. Narrowly Tailored exception to formalities - In re Snide opposite result dispositive provisions were identical, and reciprocal only thing that could explain variance was by the mistakes narrow exceptions with easily established proof. b. Constructive Trusts i. Pope v. Garrett Intentional wrongdoers benefited, but even for the innocent beneficiaries, court imposed a constructive trust ii. Estate of Tolin upon advice from friend, T tears up photocopy of will. Original turns up. Destruction of photocopy insufficient to revoke will however court imposes a constructive trust upon the beneficiaries of the will. 3. Substantial Compliance If will is defectively executed, and if the defective execution still fulfills the purposes of the formalities, then its deemed valid. a. Proving Due Execution With Attestation Clauses & Affidavits i. Attestation Clauses facilitates probate by provided prima facie evidence & permits probate of a will when a witness forgets the circumstances [rebuttable] 1. Expresses Present Intent to Act as Witness ii. Self Proving Affidavit Conclusive Proof (under many states & UPC) cannot challenge this. (Ohio & Minority do not recognize this). Swears the will has been signed. 1. One Step Ws sign only once, affidavit language in attestation clause and notarized.

Two Step Appends separate instrument at the end of a will. Ws must sign both Will and Affidavit. b. Substantial Compliance Doctrine - Clear and convincing evidence of Ts intent should be produced by proponent to establish substantial compliance with statutory requirements . i. Newman says it doesnt work for signatures, but DP can. ii. In re Will of Ranney 2 Ws sign, notarize, but didnt sign as attest. Separate sworn statement but not refusing to probate b/c the witnesses signed the affidavit. 4. Harmless Error (Dispensing Power Doctrine) Court may excuse noncompliance with formalities if there is clear and convincing evidence that T intended the document to be his will. UPC and Minority of Jurisdictions.

UPC 2-503 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 to constitute: 1. Decedents Will 2. Partial or Complete Revocation of the Will 3. A Codicil 4. Partial or Complete revival of her formerly revoked will or formerly revoked portion of will Refers only to the document being a will. Signature isnt strictly required. Purpose cure defects in formalities of will Focus is on intent In re Estate of Hall T makes a will, marries, revises new will with new wife (joint). New will is marked up draft, ask lawyer if its good as is, signsnotarizes. He then tears up the old will Held if two Ws dont properly witness, in some circumstances can be treated as proper execution, just gotta prove it. 5. Notarized Wills a. UPC 2-502(a)(3)(B) A will is valid if its signed by two witnesses OR by a notary. Either acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgements. b. Ferrer T has no witnesses, just notarized NJ allows substantial compliance, but actually having a witness is fundamental to the reqmt of formality. 6. Holographic Wills - Wills without attestation. Must be handwritten and signed.. a. Majority doesnt recognize (Ohio). b. Signature most jurisdictions anywhere on the document. However, if not signed at the end doubt as to intent was to be signature. c. Handwriting Requirement justified by evidentiary role more complete evidence for inspection by handwriting experts. Admission into probate depends on how much of the instrument is written by Ts hand. i. First Generation Statutes entirely hand written, signed dated ii. Second Gen. Statutes material provisions must be written by hand iii. Third Gen material provisions + extrinsic evidence (UPC) d. Materiality dispositive provisions are material. i. Preprinted / Boilerplate Wills split in jurisdictions a. b. c. d.

Look to preprinted portion person who handwrote wishes on preprinted Will valid, intent clear. 2. Other JDs / UPC ignore all preprinted words, read only the handwritten portions. e. Estate of Gonzalez boilerplate will. 2 Ws saw completed form and blank form. T signs completed form, Ws sign blank form. Not signed by W = Holographic. Held handwritten provisions draw testamentary context.

REVOCATION OF WILLS Ability to revoke a will is fundamental during Ts lifetime. Elements: (1) Act (2) Intent to Revoke; (3) Performed by the Testator. If by proxy, that person must be in the conscious presence of the testator and must act with the Testators direction. 1. Ways to Revoke all states permit by one of two ways. a. Destruction b. By subsequent will or codicil (following will formalities exceptions to formalities apply) c. UPC 2-507 - (a) a will or any part is revoked: (1) by subsequent writing that revokes all or part expressly or by inconsistency; or (2) performing revocatory act, if act performed with intent and for the purpose of revoking the will or part; or if another individual performed act for them in their conscious presence and by directionact includes burning, tearing, cancelling, obliterating, or destroying the will or any part of itwhether or not touched any words of the will. 2. Revocation by subsequent will or codicil - Inconsistency a. Codicil Presumption is that part the codicil replaces is void. i. if codicil revokes, and is destroyed, it has no effect on the validity of the will b.