Wills Estates Trusts 2

Witness must be present when the will is signed or acknowledged and the will must be signed at the end. UPC 1990 and 2008 do not requires the signature to be at the end

Will is valid, but witness can’t take under will. Minority states allow an interested witness to sign. If the will is witnessed by a sufficient number of disinterested persons, the will is valid and the witness can take his full bequest. Majority of states purge the amount in excess of intestacy
UPC 2-505(b) – an interested party can witness and take more than he would under intestacy rules

Yes

Yes, still upheld unless the mistake was based on an insane delusion or was a result of fraud

the court may deem a defectively executed will as being in accord with the statutory formalities if the defective execution nonetheless fulfills the purposes of those formalities - a will should be admitted to probate if there is clear and convincing evidence that the purposes of the formalities (evidentiary, cautionary, protective, and channeling) were served despite a defective execution.

the court may excuse noncompliance with statutory formalities if there is clear and convincing evidence that the decedent intended the document to be his will. This is the UPC approach and the modern trend

Requires clear and convincing evidence of testator's intent that the document or writing to constitute (i) the decedent's will, (ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (iv) a partial or complete revival of his [or her] formerly revoked will or of a formerly revoked portion of the will.

1. Two step – separate affidavit at the end of the will (end up signing twice) 2. One step – combined attestation clause and the self-proving affidavit (everyone only signs once) -done after the will is executed

Husband had will and decided to create a joint will with his wife. After the will was drafted, but not yet witnessed, the attorney told husband that could work as a temporary will. The couple destroyed the husband’s old will. Testator's wife applied to informally probate the joint will. Testator's daughter from a previous marriage objected to the informal probate and requested formal probate of the original will. The District Court admitted the joint will to probate, and daughter appealed. The Supreme Court held that, although no witnesses were present at the execution of the joint will of testator and his wife, evidence indicated that testator intended that the joint will be his will, and thus, joint will properly was admitted into probate.

allows extrinsic evidence to be used to est. testamentary intent

1. be written by the testator’s hand; and - 3 types of statutes 1. first generation statutes: must be entirely written, signed and dated in the handwriting of the testator. 2. second generation statutes: only the signature and the material provisions be in the testator’s handwriting 3. third generation statutes: valid if the signature and material portions of doc are in testator’s handwriting 2. be signed by the testator. -can be signed anywhere on the doc

The condition was that she didn’t return from a trip. She died later, but not during her trip. The important part was her intent to create a disposition, not the condition.

-codicils are drafted with the same formality as wills. It can change anything about the will or add to it. - in MA codicils republish the will

1. by a subsequent writing executed with testamentary formalities; or 2. by a physical act such as destroying, obliterating, or burning the will. -must have intent to revoke -In MA - cancelling has to touch the words themselves, the UPC doesn’t require that the words by touched
-Restatement 3^rd treat a subsequent will that does not expressly revoke the prior will, but makes a complete disposition of the testator’s estate, as presumptively replacing the prior will and revoking it by inconsistency. If the subsequent will does not make a complete disposition of the testator’s estate, it is not presumed to revoke the prior will but is viewed as a codicil (an instrument that supplements a will), and the property not disposed of under the codicil is disposed of in accordance with the prior will. The codicil supersedes the will to the extent of inconsistency between them.

(a) A will or any part thereof is revoked: (1) by executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or (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