Execution of wills

1
Execution of wills

• Courts can be very persnickety about the
  formalities associated with the execution of
  wills
• They seem to have forgotten that formalities are
  supposed to be means to ends, not ends in and of
  themselves.
• One might expect courts to say that complete
  adherence to formalities provides a safe harbor
  for the testator, but the will can also be
  probated if the wills proponents prove its
  validity by clear and convincing evidence
• But many courts wont even go beyond the will
  itself to see if its clear that the will
  reflects the testators intent and was not
  compromised by lack of testamentary capacity,
  undue influence, fraud or duress.

2
Execution of wills

• The Baron and Lindgren readings on pages 224 and
  225 nicely illustrate the oddity of the laws
  strictness with wills by contrasting the laws
  greater flexibility with contracts.
• To make a contract, you dont need witnesses, and
  you dont need a writing (and consider witness
  testimony in criminal cases)
• Can we explain the difference in terms of the
  testators unavailability when the will is
  interpreted?
• Well see with advance directives for medical
  care that courts are not as strict about
  formalitieseven in states that require clear and
  convincing evidence of the patients wishes
  before discontinuing treatment, a written
  document is not required.
• And more is at stake in those caseswhether the
  patient will live or die.

3
Functions of formalities, pages 224-225

• Does this remark indicate finality of intention
  to transfer ?
• i.e., finality in the absence of writing a new
  will

• Ritual Function
• The performance of some ceremonial act for the
  purpose of impressing the transferor with the
  significance of his statements.
• Evidentiary Function
• Supply satisfactory evidence to the court,
  especially when recollections of oral testimony
  can be unreliable or willfully distorted
• Protective Function
• Prophylactic purpose of safeguarding the testator
  (a purpose that arose when wills were executed
  when death was imminent)
• Channeling Function
• Standardization of form simplifies administration.

4
Comparison of statutory formalities
Statute of Frauds (Land) (1677)
Uniform Probate Code (1990, rev. 2008)
Uniform Probate Code (1900)
Wills Act (1837)
Writing
Writing
Writing
Writing
Writing
Writing
Writing
Writing
Signature
Signature
Subscription
Signature
Signature
Signature
Subscription
Signature
Attestation signature by 2 witnesses OR
notarization
Attestation signature by 2 witnesses
Attestation subscription by 2 witnesses
Attestation subscription by 3 witnesses
Attestation signature by 2 witnesses
Attestation subscription by 2 witnesses
Attestation subscription by 3 witnesses
5
UPC 2-502(a)
UPC 2-502(a) (1990, rev. 2008)
Except as otherwise provided, a will must
be (1) in writing (2) signed by the
testator or in the testators name by some other
individual in the testators conscious presence
and by the testators direction and (3)
either (A) signed by at least two
individuals, each of whom signed within a
reasonable time after the individual witnessed
either the signing of the will as described in
paragraph (2) or the testators acknowledgment of
that signature or acknowledgment of the will
or (B) acknowledged by the testator before a
notary public or other individual authorized by
law to take acknowledgments.
6
Will execution in Indiana

• Ind. Code 29-1-5-2 writing required
• (a) All wills except nuncupative wills shall be
  executed in writing.
• Ind. Code 29-1-5-3 signature and witnessing
  required
• (a) . . . A will, other than a nuncupative will,
  must be executed by the signature of the testator
  and of at least two (2) witnesses . . .
• (b) A will may be attested as follows
• (1) The testator, in the presence of two (2) or
  more attesting witnesses, shall signify to the
  witnesses that the instrument is the testator's
  will and either
• (A) sign the will(B) acknowledge the testator's
  signature already made or(C) at the testator's
  direction and in the testator's presence have
  someone else sign the testator's name.
• (2) The attesting witnesses must sign in the
  presence of the testator and each other.
• An attestation or self-proving clause is not
  required under this subsection for a valid will.

7
In re Groffman (1)
In re Groffman, (1969) 2 All E.R. 108 (High Ct.
of Justice, Eng.) (1)
Widow
Charles
Miss Berenson
Daughter
Son
8
In re Groffman (2)
Why was Groffmans will invalid?
1) Groffman to Mr. Block and Mr. Leigh I should
like you now to witness my will will is already
signed by Groffman.
2) Groffman and Mr. Block move from lounge to
dining room, and Mr. Block witnesses will. Mr.
Leigh somewhat cumbrous in his movements, was
left behind.
3) Mr. Block returns to lounge.
4) Mr. Leigh goes to the dining room and
witnesses will.
Groffman failed to make or acknowledge his
signature in the presence of two or more
witnesses present at the same time
9
In re Groffman (2)
Would the will have been executed validly if done
as below?
1) Groffman to Mr. Block and Mr. Leigh Here is
my will. As you can see, Ive already signed it.
I should like you now to serve as witnesses.
2) Groffman and Mr. Block move from lounge to
dining room, and Mr. Block witnesses will. Mr.
Leigh somewhat cumbrous in his movements, was
left behind.
3) Mr. Block returns to lounge.
4) Mr. Leigh goes to the dining room and
witnesses will.
Yes. The witnesses had to be in each others
presence when the testator signed or acknowledged
signing, but they didnt have to be in each
others presence when they signed.
10
Would the variation on Groffman have produced a
valid will in Indiana?

• Ind. Code 29-1-5-3
• (b) A will may be attested as follows
• (1) The testator, in the presence of two (2) or
  more attesting witnesses, shall signify to the
  witnesses that the instrument is the testator's
  will and either
• (A) sign the will(B) acknowledge the testator's
  signature already made or(C) at the testator's
  direction and in the testator's presence have
  someone else sign the testator's name.
• (2) The attesting witnesses must sign in the
  presence of the testator and each other.

No. Indiana requires that the witnesses sign in
the presence of each other.
11
Stevens v. Casdorph (1)
Stevens v. Casdorph, How will estate be
distributed under rules of intestacy?
Homers Sibling
Homers Sibling

• Homer

Homers Sibling
??
??
??
Peggy
Betty
Patricia
Janet
Patricia Casdorph
Paul Casdorph
Frank Paul Smith
Contestants The Stevenses
80,000
More than 320,000
Under English, Paul and Frank Paul take 1/3 and
the Steveneses each take 1/12. Under Modern and
UPC, Paul, Frank Paul and the Stevenses each take
1/6.
12
Stevens v. Casdorph (2)
Stevens v. Casdorph, 508 S.E.2d 610 (W. Va.
1998) (2)
1) Mr. Miller asks Debra Pauley, bank employee
and public notary, to help with the execution of
his will.
2) Mr. Miller signs the will with Ms. Pauley
present.
3) Ms. Pauley takes Mr. Millers will to two
other bank employees in the same small lobby, to
have them sign as witnesses. Mr. Miller remains
at Ms. Pauleys desk.
4) Ms. Waldron and Ms. McGinn sign Mr. Millers
will as witnesses without having seen Mr. Miller
sign the will.
Order of Events During Execution
13
Did the execution of Millers will satisfy WV law?

• the signature shall be made or the will
  acknowledged by the testator 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, but no form of attestation shall be
  necessary.
• W. Va. Code 41-1-3 (1997), p.230
• Depends how you interpret presence

14
UPC 2-502(a)
Would the Groffman or Miller will be valid under
the UPC?
Except as otherwise provided, a will must
be (1) in writing (2) signed by the
testator or in the testators name by some other
individual in the testators conscious presence
and by the testators direction and (3)
either (A) signed by at least two
individuals, each of whom signed within a
reasonable time after the individual witnessed
either the signing of the will as described in
paragraph (2) or the testators acknowledgment of
that signature or acknowledgment of the will
or (B) acknowledged by the testator before a
notary public or other individual authorized by
law to take acknowledgments.
Yes, for Groffman (3A), but no for Millerthe
witnesses need to witness the testator sign or
acknowledge, not merely be in the presence of the
testator
15
Presence in Will Execution

What does presence mean?
Conscious Presence Test

• Line of Sight Test (IN rule)

The testator does not actually have to see the
witnesses sign, but must be able to see them were
the testator to look.
The testator, through sight, hearing, or general
consciousness of events, comprehends that the
witness is signing.
16
Problems, page 234

1. Valid under conscious presence but not under line
   of sight test
2. The courts rejected the telephonic witnessing.
   Witnesses cant ascertain capacity over the phone
   or be sure they are talking to the testator or
   signing the same document. A webcam seems to
   address these concerns, but probably is not
   acceptable yet. Ohio code expressly rejects it.
3. Its difficult to understand the courts problem
   with the execution. This case too illustrates how
   adhering to the letter of formalities can get in
   the way of fulfilling their purposes.

17
Signature in Will Execution
What forms of signature evidence finality,
distinguishing a will from a draft or mere notes?
The law is generally more flexible with this
formality


Location of Mark
Order of signing
Type of Mark

• Name in full
• A cross (X), abbreviation, or nickname
• Electronically printed name in full (cursive
  font)?
• Initials and date?
• Mark made by someone else at the direction of T

• At the end of the document, generally
• Subscription at the foot or end thereof
  (required by a few states)
• Somewhere else?

• Additions to will made after signing may be
  invalid
• Witnesses
• At time of Ts signing or acknowledgment, as
  part of one continuous transaction
• Within a reasonable time?
• After Ts death?

18
Will execution in Indiana

• Ind. Code 29-1-5-3
• b) A will may be attested as follows
• (1) The testator, in the presence of two (2)
  or more attesting witnesses, shall signify to the
  witnesses that the instrument is the testator's
  will and either (A) sign the will
  (B) acknowledge the testator's signature already
  made or (C) at the testator's direction and
  in the testator's presence have someone else sign
  the testator's name.
• (2) The attesting witnesses must sign in the
  presence of the testator and each other.

19
Taylor v. Holt
Taylor v. Holt, 134 S.W.3d 830 (Tenn. App.
2003)Steve Godfreys Will
20
Delayed attestation

• It may be surprising to know that in some states,
  witnesses may sign after the testators death
• They still have to observe the testator sign the
  will or observe the testator acknowledge a
  previous signing, but they dont actually have to
  sign immediately or before the testators death.
• You can imagine why this makes sense. Lets say
  the testator signs a will, the first witness
  signs, and then the testator drops dead. Surely,
  it should be okay for the second witness to sign.
• When courts have allowed delayed witness
  signatures, they have acted in conformity with
  state statutes that didnt require the witnesses
  to sign in the presence of the testator or of
  each other (as required in Indiana and other
  states)

21
Videotapes

• Not yet accepted as valid wills, but admissible
  to prove that the will was validly executed
• Ind. Code 29-1-5-3.2Subject to the applicable
  Indiana Rules of Trial Procedure, a videotape may
  be admissible as evidence of the
  following   (1) The proper execution of a
  will.   (2) The intentions of a
  testator.   (3) The mental state or capacity of
  a testator.   (4) The authenticity of a
  will.   (5) Matters that are determined by a
  court to be relevant to the probate of a will.

22
Indiana and interested witnesses (majority
approach)(UPC allows for interested witnesses)

• Ind. Code 29-1-5-2(c)If a witness would
  receive a bequest and the witness attestation
  and signature is necessary such will shall be
  void only as to him and persons claiming under
  him . . . but if he would have been entitled to
  a distributive share of the testator's estate
  except for such will, then the witness is
  entitled to that share not exceeding the value
  of such interest passed to him by such will.

23
Indiana andinterested witnesses

• Ind. Code 29-1-5-2(d)No attesting witness is
  interested unless the will gives to him some
  personal and beneficial interest. The fact that a
  person is named in the will as executor, trustee,
  or guardian, or as counsel for the estate,
  personal representative, trustee or guardian does
  not make him an interested person

24
Executing andsafeguarding wills

• The notes on pages 242-246 provide very good
  practical advice about executing and safeguarding
  your clients wills
• As the notes indicate, the law of the state where
  the decedent was domiciled at death governs the
  disposition of personal property, and the law of
  the state where real property is located governs
  the disposition of real property
• Reciprocity provisions are typical, but it still
  is best to execute in a way that will satisfy all
  states
• Also, Ive linked sample attestation and
  self-proving clauses to the syllabus on Oncourse

25
Execution of willsCuring defects

• As weve seen, courts can be very strict in
  requiring compliance with the formalities of
  execution
• However, other courts will exhibit some
  flexibility under the doctrines of substantial
  compliance and harmless error.
• Well start our discussion of doctrines that
  allow for cure with the easy case of switched
  mutual wills by spouses

26
In re Pavlinkos Estate
What were the facts in In re Pavlinkos Estate,
p.246
1949
1951
1957
Vasil and Hellen mistakenly signed each others
will. Both left their estate to their spouse,
with her brother as residuary legatee.
Hellen Pavlinko died. No will offered for
probate.
Vasil Pavlinko died. Instrument signed by Vasil
but written as Hellens will was offered for
probate.
Brother
Hellen Pavlinko
Vasil Pavlinko
??
27
In re Pavlinko

• If the court didnt want to rewrite the will that
  Vasil signed or probate the will that Hellen
  signed, what else might it have done to carry out
  Vasils wishes?
• It might have imposed a constructive trust on
  Vasils heirs in favor of Hellens brother.
• Did Hellens brother have any other recourse?
• He might have tried to recover through a tort
  claim against the lawyer (remember from week two
  of the course the Simpson case on page 58 about
  the lawyers duty to intended beneficiaries)

28
In re Pavlinko

• Problems with relying on malpractice suits
• Malpractice liability will fail to cover some
  mistakes. The lawyer may be dead or uninsured.
  For unique items of personal property or the
  family home, damages may be an inadequate remedy.
• The cost of collecting a claim against a lawyer,
  and the litigation delays, means that the claim
  is only worth a fraction of its face value. It is
  cheaper for a court to correct the mistake (which
  a lawyer may admit, if correctable) than to
  pursue a lawyer, who can throw up all kinds of
  defenses, forcing a settlement.
• For Pavlinkos heirs to take his property
  unjustly enriches them. To solve the problem by
  making the lawyer liable creates a needless loss,
  which will be paid by the lawyers insurer and,
  ultimately, the public.

29
In re Snide
In re Snide, 418 N.E.2d 656 (N.Y. 1981)
(Pavlinko problem)
Harvey Snide
Rose
Adult Beneficiary
Adult Beneficiary
Minor Beneficiary
Guardian ad Litem
30
Fixing switched wills

• Probate the will that the testator meant to sign
  by curing the defect in the execution.
• We know which will the testator intended to
  execute overlooking the failure to execute
  properly carries out the testators clear intent.
• Probate the will that the testator did sign by
  reforming the will for mistake (i.e., change the
  language to fit the will the testator intended to
  sign).
• Allows the court to probate the document that
  satisfied the execution formalities
• The Snide court took this approach

31
Curing defects in execution

• States willing to cure defects in execution of a
  will take one of two approaches.
• Did the execution of the will substantially
  comply with the statutory formalities?
• Substantial compliance can be implemented as a
  matter of common law
• Was the failure to comply with statutory
  formalities harmless error?
• Harmless error so far has required statutory
  implementation.
• More effective at vindicating testators intent

32
Substantial compliance and harmless error

Types of Curative Doctrines
Harmless Error Rule (UPC 2-503)
Substantial Compliance
The court may deem a defectively executed will as
being in accord with statutory formalities if
there is clear and convincing evidence that the
purposes of those formalities were served.
The court may excuse noncompliance if there is
clear and convincing evidence that the decedent
intended the document to be his will.
33
In re Will of Ranney
What were the facts in In re Will of Ranney?,
p.253
No attestation clause but two-step affidavit
? witnesses did not sign the will
? affidavit language refers to attestation that
NEVER happened

• The wife contested the will because she did not
  receive as much as she wanted

34

Self-proving wills
One-Step Process
Two-Step Process

Self-Proving Wills

• Witnesses sign ONCE
• Affidavit language is a part of the attestation
  clause
• Notarization of the affidavit

• Witnesses sign attestation clause (p.244, number
  7)
• THEN, witnesses sign a separate affidavit
• Notarization of the affidavit

35
In re Will of Ranney
In re Will of Ranney, p.253

• Can the signatures on the self-proving affidavit
  satisfy the requirement that witnesses sign the
  will?
• Yes, says the court. The formalities were not
  observed, but the will still substantially
  complied with statutory requirements (bottom page
  257) (and this has to be proven by clear and
  convincing evidence).
• Note the courts requirement that the probate
  proceed in solemn form (page 258) (the English
  term for what we generally call formal probate,
  page 43).
• What Ranney lost by his lawyers sloppiness was
  the opportunity to avoid the need for a formal
  hearing at which the witnesses must testify.
  Lucky for Ranney that the witnesses were available

36
Signing the self-proving affidavit only in Indiana

• If the testator and witnesses sign a self-proving
  clause that meets the requirements of subsection
  (c) or (d) at the time the will is executed, no
  other signatures of the testator and witnesses
  are required for the will to be validly executed
  and self-proved.
• Ind. Code 29-1-5-3.1(a)

37
Signatures by witnesses

• Witnesses can simply sign the will
• Recall the Godfrey will on page 236
• Recall from Ind. Code 29-1-5-3(b) that an
  attestation or self-proving clause is not
  required under this subsection for a valid
  will..
• Witnesses can sign an attestation clause
• Witnesses can sign an attestation clause and a
  self-proving affidavit
• The attestation clause and self-proving affidavit
  are valuable as evidence of due execution

38
Effect of self-proving affidavit

• UPC 3-406(1)
• If the will is self-proved, compliance with
  signature requirements for execution is
  conclusively presumed and other requirements of
  execution are presumed subject to rebuttal
  without the testimony of any witness. . . unless
  there is proof of fraud or forgery affecting the
  acknowledgment or affidavit.
• Ind. Code 29-1-7-13(c)
• If the will is self-proved, compliance with
  signature requirements for execution and other
  requirements of execution are presumed subject to
  rebuttal without the testimony of any witness . .
  . unless there is proof of fraud or forgery
  affecting the acknowledgment or verification

39
UPC 2-503 Harmless Error

• Although a document or writing added upon a
  document was
• not executed in compliance with Section 2-502,
  the 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 or writing to
  constitute
• (i) the decedents 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.

40
In re Estate of Hall
What were the facts in In re Estate of Hall?,
page 259
1984 Original Will drafted and executed.
Jim Hall
Betty Hall
First Wife
1997 Joint Will drafted by attorney for Jim
and Betty.
June 4, 1997 Jim and Betty discuss draft of
Joint Will, agree on changes to be made.
Sandra
Charlotte
June 4, 1997 Jim and Betty sign draft of Joint
Will and attorney notarizes it without anyone
else present.
41
Was the draft will properly executed?

• No. There were not two witnesses
• But Montana had adopted the harmless error
  provision of the UPC
• Was there clear and convincing evidence that Jim
  intended the draft will to be his will?
• Yes. Betty testified that Jim and she expected
  the joint will to stand as a valid will until
  their lawyer provided a cleaner, more final form
• Indeed, they tore up their original will after
  signing the draft

42
Execution of Wills3. Notarized Wills
43
UPC 2-502 Notarized Wills

• (a) provides that a formal will that is in
  writing and
• signed by the testator may be either attested by
  2
• witnesses or
• (3) . . . (B) acknowledged by the testator
  before a notary public or other individual
  authorized by law to take acknowledgments.
• Of particular value for laypeople who write their
  own wills without legal advice and are accustomed
  to having formal documents notarized

44
In re Will of Ferree, pp.266-267
Difficult to square this case with Ranney. Since
this case, NJ has adopted harmless error
45
Execution of Wills4. Holographic Wills
46
Functions of Formalities

• Does this remark indicate finality of intention
  to transfer ?
• i.e., finality in the absence of writing a new
  will

• Ritual Function
• The performance of some ceremonial for the
  purpose of impressing the transferor with the
  significance of his statements.
• Evidentiary Function
• Supply satisfactory evidence to the court.
• Protective Function
• Prophylactic purpose of safeguarding the
  testator.
• Channeling Function
• Standardization of form simplifies administration.

47
Indianas holographic statute
48
Holographic Will States (2008)
49
Kimmels Estate (1)
Kimmels Estate, p. 269

• Johnstown, Dec. 12.
• The Kimmel Bro. and Famly
• We are all well as you can espec fore the time
  of the
• Year. I received you kind welcome letter from
  Geo Irvin
• all OK glad you poot your Pork down in Pickle it
  is the true
• way to keep meet every piece gets the same, now
  always
• poot it down that way you will not miss it
  you will have
• good pork fore smoking you can keep it from
  butchern to
• butchern the hole year round. . . .

50
Kimmels Estate (2)
Kimmels Estate, (cont.)

• What part of the letter suggests that he intended
  it as his will?
• well I cant say if I will come over yet. I
  will wright in my next letter it may be to ruff
  we will see in the next letter if I come I have
  some very valuable papers I want you to keep fore
  me so if enny thing hapens all the scock money in
  the 3 Bank liberty lones Post office stamps and
  my home on Horner St goes to George Darl Irvin
  Kepp this letter lock it up it may help you out.
  Earl sent after his Christmas Tree Trimmings I
  sent them he is in the Post office in Phila
  working.
• Will clost your Truly,
• Father.
• As weve seen courts are not sticklers about
  signatures Father is sufficientit was the way
  Kimmel typically signed his letters

51
Conditional wills, p.272

• Conditional devises are present in almost all
  wills (to A if A survives me)
• Conditional wills should never be used (This is
  my will if I die on my trip to the South Pole.)
• Fortunately for testators, courts have been
  lenient with the conditional language in
  conditional wills, reading them as motives rather
  than triggering contingencies (perhaps because
  the leading authority, Eaton v. Brown, is a
  Supreme Court opinion by Justice Holmes).

52
How much must be in the testators handwriting?

• Since holographic wills earn their authenticity
  because they are written by the testator by hand,
  a key question is how much of the will must be
  written by the testator? 
• It is common for people to fill in the blanks on
  a pre-printed form. If they have it properly
  witnessed, then it can be probated as a formal
  will
• But if they dont have it properly witnessed (say
  they have it notarized as in the Ferree case,
  pages 266-267), can they have it probated as a
  holographic will?

53
What were the facts in Gonzalez?, p. 274

• Fermin Gonzalez filled out a preprinted form for
  his will and showed it to his brother and
  sister-in-law.
• The sister-in-law saw Fermin sign the form, but
  no one signed as a witness.
• However, the brother and sister-in-law and
  Fermins mother signed another preprinted form
  onto which he planned to copy his instructions.
• Did Fermin execute a valid will?
• It had no signatures by witnesses, but was it
  valid as a holographic will?
• The will was contested because he left his estate
  to three out of his five children

54
Estate of Gonzalez
Estate of Gonzalez
55
Maine statutes in Gonzalez

• With some exceptions, every will shall be . . .
  signed by at least 2 persons each of whom
  witnessed either the signing or the testator's
  acknowledgment of the signature or of the will.
  ( 2-502)
• A will which does not comply with section 2-502
  is valid as a holographic will, whether or not
  witnessed, if the signature and the material
  provisions are in the handwriting of the
  testator. ( 2-503)

56
Did Fermin write the material provisions?

• Some states incorporate the preprinted words into
  the will
• Other states ignore the preprinted words and
  consider whether the handwritten words alone make
  up a will (as in Ferree)
• This court includes the preprinted words
• Note that Fermins will reads like a will even
  without the preprinted words, while Ferrees does
  not

57
What result in a harmless error, non-holographic
state?

• Would Fermins document have been saved as a
  formal will without the witnessing?
• Perhaps, but as a formal will, Fermins document
  is weaker than Ferrees. We might ask whether
  the contestants asked the right question.
  Instead of asking whether the pre-printed
  language counted as part of the will, they could
  have asked whether this really was Fermins will
  or only a draft.
• What makes it only a draft?
• The witnesses signed the other form.
• What makes it a will?
• Fermin signed it twice.

58
Signature and Handwriting (1)

• A holographic will must be
• Written by the testators hand, and
• Signed by the testator
• Some states require that the will be dated
• Signature
• In almost all states permitting holographs, the
  will may be signed at the end, at the beginning,
  or anywhere else on the face of document.
• BUT, if not signed at the end, there may be doubt
  about whether the decedent intended his name to
  be a signature.
• Handwriting
• First generation Entirely written, signed and
  dated.
• Second generation Material provisions
• Third generation Material portions and extrinsic
  evidence allowed

59
The will in Williams v. Towle
The will in Williams v. Towle,66 Cal. Rptr. 3d
34 (App. 2007)
60
Signature and Handwriting (2)

• A holographic will must be
• Written by the testators hand, and
• Signed by the testator
• And dated in some states
• Signature
• In almost all states permitting holographs, the
  will may be signed at the end, at the beginning,
  or anywhere else on the face of document.
• BUT, if not signed at the end, there may be doubt
  about whether the decedent intended his name to
  be a signature.
• Handwriting
• First generation Entirely written, signed, and
  dated.
• Second generation Material provisions.
• Third generation Material portions and
  extrinsic evidence allowed.

61
Handwriting Statutes (2008)
First Generation Second Generation Third
Generation Other
62
UPC 2-502(b)-(c)

• (b) Holographic Wills. A will that does not
  comply with
• subsection (a) is valid as a holographic
  will, whether or not
• witnessed, if the signature and material
  portions of the
• document are in the testators handwriting.
• According to the to 2-502(b), language such as
  I give, devise and bequeath to in a preprinted
  will form should not disqualify the instrument
  as a valid holograph if the testator fills in the
  rest by hand.
• (c) Extrinsic Evidence. Intent that a document
  constituted
• the testators will can be established by
  extrinsic evidence,
• including, for holographic wills, portions
  of the document
• that are not in the testators handwriting.

63
UPC 2-502(b)-(c)

• (b) Holographic Wills. A will that does not
  comply with
• subsection (a) is valid as a holographic
  will, whether or not
• witnessed, if the signature and material
  portions of the
• document are in the testators handwriting.
• According to the to 2-502(b), language such as
  I give, devise and bequeath to in a preprinted
  will form should not disqualify the instrument
  as a valid holograph if the testator fills in the
  rest by hand.
• (c) Extrinsic Evidence. Intent that a document
  constituted
• the testators will can be established by
  extrinsic evidence,
• including, for holographic wills, portions
  of the document
• that are not in the testators handwriting.
• The Kuralt case indicates another way in which
  extrinsic evidence is considered

64
In re Estate of Kuralt (1)
In re Estate of Kuralt,(Why is this case decided
by a Montana court when Kuralt lived and died in
NY?)
Montana Property
Residuary Estate
Charles Kuralt
Petie (wife)
Shannon
Child
Child
Child
Child
Child
65
In re Estate of Kuralt (2)
In re Estate of Kuralt,15 P.3d 931 (Mont. 2000)
(slide 2)
Timeline
K meets Pat (Baker) Shannon, long-term romance
ensues.
Holographic will executed leaving MT property to
Pat
Sham sale of log cabin parcel to Pat intention
to complete second sham sale of remainder of MT
property.
K dies
June 18, 1997
July 4, 1997
1962
1985
1994
1997
1968
1989
K marries Suzanne Baird.
Pat moves into MT log cabin on 20 acre parcel,
built for her by K. Adjacent to two additional
parcels 90 acres in area.
Formal will executed leaving nothing to Pat
K, in hospital, writes letter to Pat, promising
to have the lawyer visit the hospital to be
sure she inherits the rest of the place in MT.
66
Kuralt

• Why didnt the court simply probate the 1989
  holographic will?
• Kuralt wrote a formal will in 1994, which
  overrode the 1989 holographic will.
• How did Kuralt try to get around the formal will?
• He decided to transfer the property to his lover
  through sham sales. He transferred part of the
  property in 1997, but became ill before the
  planned transfer of rest of the property.
• Was the letter from the hospital a valid
  holographic codicil to the 1994 will, or was it
  an expression of a future intent to write a will
  (page 283)?
• The district court found it to be a valid
  holographic, and the supreme court held that the
  district court did not err in so finding (page
  285)

67
In re Estate of Kuralt (3)
In re Estate of Kuralt,15 P.3d 931 (Mont. 2000)
(slide 3)
In Re Estate of Kuralt
The holographic will at issue in Kuralt
68
In re Estate of Kuralt (4)
In re Estate of Kuralt,15 P.3d 931 (Mont. 2000)
(slide 4)

• June 18, 1997
• Dear Pat
• Something is terribly wrong with me and they
  cant figure out what. After cat-scans and a
  variety of cardiograms, they agree its not lung
  cancer or heart trouble or blood clot. So theyre
  putting me in the hospital today to concentrate
  on infectious diseases. I am getting worse,
  barely able to get out of bed, but still have
  high hopes for recovery if only I can get a
  diagnosis! Curiouser and curiouser! Ill keep you
  informed.
• Ill have the lawyer visit the hospital to be
  sure you inherit the rest of the place in MT. if
  it comes to that.
• I send love to you your youngest daughter,
  Shannon. Hope things are better there!
• Love,
• C.

69
Problem with Kuralt

• Suppose T dies without a will but with one of the
  following kinds of evidence indicating his chosen
  beneficiary at death
• Ts letter to his lawyer to draft a will in
  accord with Ts wishes
• a videotape of T explaining whom he wants as
  beneficiary
• a typed, unsigned document prepared by T entitled
  estate plan
• the credible testimony of five individuals, all
  of whom say that T wanted to leave his property
  in Manhattan to his friend A
• Ts letter to a beneficiary informing her that he
  plans to leave her property at his death or
• Ts letter to a beneficiary informing her that he
  plans to have a lawyer draft a will to ensure
  that she inherits his property at his death.
• Do we have a will with any of these kinds of
  evidence?

70
Problem with Kuralt

• Restatement (Third) of Property Wills and Other
  Donative Transfers 3.3, cmt. b, Illus. 1 (1999)
• G sent a signed letter to his attorney giving
  directions for the preparation of his will. G
  died while the will was being prepared. Neither
  the letter nor the draft prepared by his attorney
  can be given effect because G never adopted
  either document as his will.

71
Taylor v. Holt
Taylor v. Holt p.236Steve Godfreys Will
72
Nuncupative wills in Indiana

• Ind. Code 29-1-5-4  (a) A nuncupative will
  may be made only by a person in imminent peril of
  death . . . and shall be valid only if the
  testator died as a result of the impending peril,
  and must be   (1) Declared to be his will by
  the testator before two (2) disinterested
  witnesses   (2) Reduced to writing by or under
  the direction of one (1) of the witnesses within
  thirty (30) days after such declaration
  and   (3) Submitted for probate within six (6)
  months after the death of the testator.(b) The
  nuncupative will may dispose of personal property
  only and to an aggregate value not exceeding one
  thousand (1,000) dollars, except that in the
  case of persons in active military, air or naval
  service in time of war the aggregate amount may
  be ten thousand (10,000) dollars.(c) A
  nuncupative will does not revoke an existing
  written will. Such written will is changed only
  to the extent necessary to give effect to the
  nuncupative will.