Statutory Requirements for a Valid Written Will
Terms: Presumption: Rebuttable (presumption): Scrivener: Subscribe: Attestation: Ex parte: |
| There are four main requirements to the formation of a valid will:
Testamentary intent involves the testator having
subjectively intended that the document in question constitute his or
her will at the time it was executed. Ordinarily, the opening recital,
e.g., I, Jane Doe, do hereby declare this instrument to be my Last Will
and Testament . . .” will suffice. In addition to testamentary intent, the testator must have the testamentary capacity, at the time the will is executed. Generally, it takes less capacity to make a will than to do any other legal act. As guidance, a four-prong test is often used. The testator must: (1) Know the nature of the act (of making a will); (2) Know the “natural objects of his bounty”; (3) Know the nature and extent of his property; (4) Understand the disposition of the assets called for by the will. See, e.g., Estate of Bullock, 140 Cal. App. 2d 944 (1956); Pace v. Richmond, 343 S.E.2d 59 (Va. 1986). A common modification to the above list of requirements is that the testator be of “sound mind” and capable of executing a valid will. Accompanying the competency standard is a minimum age requirement, which is usually age 18. See Cal. Prob. Code § 6100; Idaho Code § 15-2-501; Utah Code § 75-2-501. Example: Robert was 79 years old when he decided to prepare his will. He had been under the care of a doctor for dementia and needed 24-hour care. His son, Rodney, insisted that he prepare a will and called a friend of his, who is an attorney, to prepare one for his father. In the will, all the property was left to Rodney, to the exclusion of his other siblings. Given Robert’s mental state, it is unlikely that he possessed the competency needed to prepare a will. As such, if this instrument were submitted for probate, the court undoubtedly would reject it. Signature Requirements Most courts take a liberal view as to what constitutes a testator’s signature. These standards range from the testator’s first name, nickname or even an “X” by an illiterate person. See, e.g., Ferguson v. Ferguson, 47 S.E.2d 346 (Va. 1948). The key is that the mark must be intended to be the testator’s signature and is made willingly by the testator. Even if the testator needs assistance in signing his name due to some infirmity, it still meets the signature requirement, as long as the testator desired and intended to sign the instrument. See, e.g., In re Will of Bernatowicz, 233 A.D.2d 838 (1996).Additionally, proxy signatures (made by another person) are acceptable, as long as the signing is at the testator’s direction and in his or her presence. See Cal. Prob. Code § 6110(b). Example: Chester decided to prepare his will a few weeks before he was to have surgery for prostate cancer. Chester’s will leaves all his property to his nephew, Alan, who was the son of his late favorite sister, Wilma. He purposely wanted to exclude his brother, Harry, and his family from the will because they never got along. Chester had some complications from the surgery and ended up in a coma. While in that state, Harry came to visit and assisted Chester is signing a will that left everything to Harry. Shortly thereafter, Chester died and Harry tried to probate this will. In order for the testator’s signature to be valid, it has to be done as a volitional act by the testator. Although someone can assist the testator in this task, the signing must still be at the testator’s direction. Here, Chester was in a coma so he did not voluntarily sign the will. As such, the will is not valid. See, e.g., In re Sheehan’s Will, 51 A.D.2d 645 (1976). In most states, there is no requirement that the testator sign at the end of the will (subscribe his signature). The signature can appear anywhere, provided it was intended by the testator to be his signature. See, e.g., Potter v. Richardson, 230 S.W.2d 672 (Mo. 1952); In re Estate of Carroll, 548 N.E.2d 650 (Ill. 1989). Example: Tyrone purchased a preprinted will to use as his will. At the beginning where it says “Last Will and Testament of __________” he signed his name. He filled in the rest of the form with his bequests and named an executor. When Tyrone died, the will was considered valid because he had signed somewhere on the instrument, although it was in the beginning rather than the end. In many jurisdictions, the signature must be at the end of the will to be valid. In these jurisdictions, even deciding where “the end” of the will is can create uncertainty. Some jurisdictions apply an objective test requiring the testator to sign at the physical end (or last line) of the document. Example: Proley writes her will by filling in the blanks on a printed form. The form calls for the testator’s signature at the bottom of the first page. The two witnesses sign there, but Proley does not. Instead, pursuant to the form’s instructions, Proley folds the sheet in thirds so that the middle third of the back side becomes the document’s spine, which says “Will of _________.” Proley signs on that line. The will is denied probate because it was not signed at the sequential end. See In re Proley’s Estate, 422 A.2d 136 (Pa. 1980). In contrast, some jurisdictions say that what constitutes the “end” is a subjective test, holding that the logical or literary end is the appropriate place for the signature. Here, the question is whether the testator subjectively thought that he was signing at the end of the will. Example: Proley writes her will by filling in the blanks on a printed form. The form calls for the testator’s signature at the bottom of the first page. The two witnesses sign there, but Proley does not. Instead, pursuant to the form’s instructions, Proley folds the sheet in thirds so that the middle third of the back side becomes the document’s spine, which says “Will of _________.” Proley signs on that line. Under the subjective test, Proley thought she was signing at the end of the will. As such, the signature is valid and the will can be probated. Signing anywhere can create confusion as to the effect of provisions that may appear after the testator’s signature. Historically, if there were material provisions appearing after the testator’s signature, the entire will was void. See, e.g., In re Winter’s Will, 302 N.Y. 666 (1951) (later overturned by N.Y. Est. Powers & Trusts Law § 3-2.1(a)(1)(A)). The modern view is that everything appearing before
the signature is given effect; but the provisions that follow the signature
are void (even assuming they existed at the time the will was made).
An exception to this view is if the provisions following the signature
are so material that deleting them would subvert the testator’s
testamentary plan. In such a case, the entire will is void. See Witnesses—attestation versus self-proving affidavit In addition to the testator signing the will, it also
has to be signed by witnesses. Like the testator, the witnesses must
possess certain minimal qualifications or their attestations may be
legally insufficient to validate the will. Specifically, the witnesses
must be competent—they must be mature enough and of sufficient
mental capacity to understand and appreciate the nature of the act that
they are witnessing and attesting to, so that, if needed, the witnesses
could testify in court on these matters. See, e.g., In
re Estate of Edwards, 520 S.2d 1370 (Miss. 1988). A witness usually is judged incompetent to serve as
a witness to the will if the person is also an interested witness. An
interested witness is one who is a beneficiary under the will. At common
law, the will was denied probate in those instances. Today, most jurisdictions
have “purging” statutes that delete the gift to the interested
witness so that the will is not denied probate. Example: Eugene,
who is single, executed a will that makes gifts to his sister, Suzanne,
and his neighbor, Bonnie. Bonnie is one of the attesting witnesses.
The purging statute applies to eliminate Bonnie’s gift because
she was an attesting witness to a will that made a beneficial gift to
her. Some states require that the testator sign the will
in the presence of the witnesses. Most states require only an acknowledgement
to the witnesses by the testator that his signature appears on the document.
See, e.g., In
re Levine’s Will, 2 N.Y.2d 757 (1956). Most courts are indifferent about whether the attesting
witnesses or the testator signs first. Of primary importance is that
the execution ceremony is part of a single, continuous transaction.
See, e.g., Waldrep
v. Goodwin, 195 S.E.2d 432 (Ga. 1973). What constitutes signing in someone’s “presence”
also has differing interpretations. Most jurisdictions define presence
as the testator being conscious of where the witnesses were and what
they were doing when they signed. Example: Georgia
signs her will while lying in a hospital bed. A vinyl screen separates
her from the doorway where the witnesses are standing, which is 12 feet
away. A nurse takes the will around the screen to the witnesses where
they sign. Since Georgia was conscious of where the witnesses were and
of what they were doing, the witnesses signed in her presence even though
they were not in her line of sight. See, e.g., Nichols
v. Rowan, 422 S.W. 21 (Tex. 1967). Other jurisdictions dictate that the presence test
is only satisfied if the witnesses are in the testator’s line
of sight when they signed. Example: Tyler
signs his will in a hospital bed, and then lies down on his back. The
two witnesses take the will into the hallway, where they sign it. If
Tyler could have seen the witnesses through the doorway had he looked,
they signed in his presence. See, e.g., Newton
v. Palmour, 266 S.E.2d 208 (Ga. 1980). Conversely, if Tyler’s
line of sight was interrupted by the wall, the witnesses did not sign
in his presence and probate will be denied. Generally, there is no “publication” requirement
(i.e., there is no requirement that the witnesses know they are attesting
witnesses to a will) in most states. Others require that the testator
publish (i.e., declare) to the attesting witnesses that the instrument
is a will. See, e.g., Cal
Prob. Code § 6110; N.Y.
Est. Powers & Trust Law § 3-2.1(a)(3). It is not necessary,
however, that they know the contents of the will. See, e.g., Strahl
v. Turner, 310 S.W.2d 839 (Mo. 1958). Example: Maggie asks two bank employees to witness
her signature on a document right before she is to leave the country
on a business trip. The employees watched Maggie sign the document;
then they added their signature. The document, however, contained no
attestation clause, and the witnesses testified that they did not know
whether they were signing a will, a power of attorney or some other
document. As such, the will was not validly executed. See, e.g.,<
In re Pulvermacher’s Will, 305 N.Y. 378 (1953). Another function of the witness is to attest (or bear
witness) to the fact that the will has been duly executed by the testator.
Although it is not required, often there is an attestation clause (i.e.,
certificate) attached that serves this function. See, e.g., Estate
of Bochner, 119 Misc. 2d 937 (1983). Example: A sample
attestation clause: “On the above date, John Doe, the testator,
declared to us, the undersigned, that this instrument was his last will,
and he asked us to sign as attesting witnesses to it. He then signed
the will in our presence, we being present at the same time. Each of
us signed the will in the testator’s presence and in the presence
of each other, we and each of us believing that the testator was of
sound mind.” In contrast, self-proved wills (wills admitted to
probate on the strength of the recitals in the affidavit without the
necessity for the witnesses to actually come and testify themselves)
require the added step of the testator and witnesses signing a sworn
affidavit, usually on a separate sheet of paper, before a notary public.
The affidavit recites all the elements of due execution and serves as
a substitute for live testimony of the attesting witnesses in open court.
On the testator’s death the will may be admitted to probate without
the testimony of any subscribing witnesses. See
UPC § 2-504. Absence of fraud and undue influence Fraud is one ground to invalidate a will. Fraud involves: See, e.g., Glazewski
v. Coronet Insurance Co., 483 N.E.2d 1263 (Ill. 1985); In
re Roblin’s Estate, 311 P.2d 459 (Or. 1957). Given the element
of deceit, courts are loath to allow the beneficiary to inherit the
estate in this instance. There are different types of fraud. Fraud in the execution
involves the testator being deceived as to the character or contents
of the document he is signing. See, e.g., Mitchell
v. Mitchell, 41 S.W.2d 792 (Mo. 1931). Example: Robert
was 79 years old when he decided to prepare his will, at the urging
of his nephew, Seth. Despite his age, Robert was mentally capable of
executing his will. In addition, he had raised Seth since the age of
6, after Robert’s brother and sister-in-law (Seth’s parents)
were killed in a fire. Accordingly, he trusted Seth implicitly and felt
comfortable having Seth’s wife, Trina (an attorney) prepare his
will. Unbeknownst to Robert, Seth had changed certain provisions in
the will (omitting the provision that gave his brother, Sandy, $35,000)
so that he would get a larger portion of the estate than Robert had
originally intended. Due to Seth’s fraudulent conduct, Robert’s
will could be subject to either partial or full invalidation if the
injured party (i.e. Sandy) presses the issue during probate. Fraud in the inducement involves the testator making
the will or writing a provision that relies upon a false representation
of a material fact made to him by one who knows it to be false. Example: Recently,
Karen decided to prepare her will. She was a very wealthy woman. She
and her late husband, Raul, never had any children; therefore, she wanted
to make bequests to her siblings’ children, if they needed it.
Since she had lost touch with some of them, she consulted her nephew,
Rod, to update her on everyone’s status. He falsely claimed that
his cousins were all very well off and only he was in need of financial
support. In reality, one of his cousins, Antoinette, had just been through
a divorce and was struggling to rebuild her life and support her two
kids. Another cousin, Felicia, had just lost her home to foreclosure
after her business failed. Even Rod’s brother, Quentin, was going
through hard times. Based on Rod’s statements, Karen provided
for a $250,000 bequest to Rod; her other nieces and nephews were left
out. The balance of her $2,000,000 estate was left to charity. Due to
Rod’s fraudulent conduct, Karen’s will could be subject
to either partial or full invalidation if the injured parties press
the issue during probate. Undue influence involves substituting another person’s
will for that of the testator. See, e.g., In
re Dunson’s Estate, 141 So.2d 601 (Fla. 1962); Rothermel
v. Duncan, 369 S.W.2d 917 (Tex. 1963). The factors of undue influence
are: Undue influence is difficult to prove because the
evidence must be substantial, going beyond mere suggestion, innuendo
or suspicion. See, e.g., Core
v. Core’s Administrators, 124 S.E. 453 (Va. 1924). Merely
having a motive, the opportunity or even the ability to exert undue
influence is not sufficient to prove it actually happened. If the elimination of a provision created under undue
influence does not defeat the overall testamentary plan, it can be
stricken; the rest of the will is still valid. See, e.g., Williams
v. Crickman, 405 N.E.2d 799 (Ill. 1980). In contrast, if this
revision alters the testator’s wishes for the disposition of
his property, the entire will is set aside. See, e.g., In
re Klage’s Estate, 209 N.W.2d 110 (Iowa 1973). Yet, the existence of a confidential relationship
between a testator and a beneficiary may raise a presumption (often
rebuttable) of undue influence, especially if the beneficiary played
an active role in procuring the will and the disposition under the will
is “unnatural.” See, e.g., In
re Arnold’s Estate, 16 Cal. 2d 573 (1940). Example: Charlotte
and her sister, Claire, contested their mother’s will on the ground
that it was the product of undue influence exerted on their mother,
Carolyn, by Wendy, the will’s sole beneficiary. At the time the
will was executed, Carolyn had been recently widowed, physically sick,
unable to walk without help, dependent on drugs and an abuser of alcohol.
During the ten months earlier, Carolyn had executed two other wills,
one leaving her estate in equal parts to Charlotte and Claire, the other
leaving the bulk of her estate to only Charlotte. Wendy, who had known
Carolyn for only two months when the will was executed, had a confidential
relationship with Carolyn as her caretaker. After learning about Carolyn’s
desire to disinherit her two daughters, Wendy urged Carolyn to prepare
a new will and took her to a newly admitted attorney who knew nothing
of Carolyn’s situation, rather than to one of the two lawyers
who had drawn up Carolyn’s previous wills. The court found for
the daughters, citing Wendy’s undue influence over Carolyn. See,
e.g., In re Swenson,
617 P.2d 305 (Or. 1980). In contrast, no presumption of undue influence arises
from the confidential relationship that normally exists between a husband
and wife. See, e.g.,
In re Estate of Glogovsek, 618 N.E.2d 1231 (Ill. 1993). One party
can be more influential on the other’s decision making without
rising to the level of undue influence. Example: In
Morse v. Volz, 808 S.W.2d 424 (Mo. 1991), evidence showed that Inga
knew the contents of her husband’s (Marvin’s) will, that
the will was drafted by Inga’s attorney and signed at his office
immediately after the wedding ceremony, that her cousin drove them to
the attorney’s office, that although Marvin had never met Inga’s
daughter, his will left half of his estate to her if Inga predeceased
him. Naturally, there was a confidential relationship between Inga and
Marvin. The court concluded the evidence was insufficient to establish
undue influence. Inga’s influence over Marvin did not rise to
that level because her urging and soliciting her husband to make a will
in her favor is not enough to prove undue influence. Nevertheless, if the influence is done in an improper
manner, there could be grounds to challenge the will. See, e.g., Snell
v. Seek, 250 S.W.2d 336 (Mo. 1952). The influence can be more sinister
in situations of remarriage where there are children from the former
marriage. Example: In contrast,
In re Estate
of Riley, 824 S.W.2d 305 (Tex. 1992), Raymond and Virginia married
after the death of Raymond’s first wife. During the subsequent
months, Virginia isolated Raymond from his children and told him they
were only after his money. Raymond eventually suffered a heart attack
and required major surgery. Although Raymond already had a will that
devised his property to his children, Virginia bought and prepared a
fill-in-the-blank will for Raymond to sign the day before his surgery.
Floyd, a witness to the will’s execution, stated that Raymond
wanted to devise his property to his kids, and that Virginia had told
him she had made such bequests in the will. Actually, Virginia was the
sole beneficiary. The day after Raymond’s death Virginia filed
the will and did not notify Raymond’s kids that their father had
died. Here, the court concluded that Virginia had clearly exercised
undue influence over Raymond because the will she procured did not reflect
Raymond’s wishes. As is often the case in legal challenges, courts decide
the outcome on a case-by-case basis, evaluating the facts in each case
independently. As such, it is difficult to predict the outcome of a
case brought under one of these theories. The most one can do is be
aware of the adverse possibilities and draft the will, as best as possible,
accordingly. Absence of mistakes If a testator somehow signs a document purporting
to be his will but it is the wrong document, most courts will hold that
there is no will. Example: Robert
was 79 years old and his wife, Audrey was 75 years old when they decided
to prepare their wills. By mistake, during the execution of the wills,
they signed each other’s will. If the mistake is not remedied,
neither signed document will be admissible to probate. See, e.g., In
re Pavlinko’s Estate, 394 Pa. 564 (1959). Generally, if a testator omits some provision in his
will it cannot be added postmortem (after death), because a will cannot
be reformed or revised once the testator has died. [In the next chapter
we will review when extrinsic (outside) evidence is admissible; however,
that is used for to clear up ambiguities, not to add new terms to the
will.] Example: Robert
was 79 years old when he decided to prepare his will, at the urging
of his nephew, Seth. Despite his age, Robert was mentally capable of
executing his will. In addition, he had raised Seth (and his brother,
Sandy) since the ages of 6 and 10, respectively, after Robert’s
brother and sister-in-law (Seth and Sandy’s parents) were killed
in a fire. Robert intended to leave $40,000 (each) to Seth and Sandy;
however, he did not notice when he executed the will that Sandy’s
provision had been inadvertently omitted. After Robert died, the omission
was discovered; however, it was too late to remedy the oversight. As
such, Sandy was not entitled to the $40,000 bequest because it was not
specifically included in the will. Conversely, a provision included in a will by mistake
may be omitted by the probate court when the will is admitted to probate,
if the mistaken inclusion is separable from the rest of the will. The
deletion of the provision cannot substantially alter the overall will
or the intent of the testator. This type of modification is similar
to one found in contracts that allows a provision that is illegal or
conflicting to be eliminated; however, the contract itself still remains
valid. Example: Robert
was 79 years old when he decided to prepare his will, at the urging
of his nephew, Seth. Despite his age, Robert was mentally capable of
executing his will. In addition, he had raised Seth (and his brother,
Sandy) since the ages of 6 and 10, respectively, after Robert’s
brother and sister-in-law (Seth and Sandy’s parents) were killed
in a fire. Initially, Robert intended to leave $40,000 (each) to Seth
and Sandy; however, he decided to eliminate Sandy’s bequest. After
Robert died, the inclusion was discovered. The probate court can delete
this provision, in keeping with Robert’s wishes, provided this
alteration does not substantially change other provisions in the will.
There can also be a mistake in the inducement, when
a testator is mistaken about a material fact and makes no provision
in the will because of it. Unlike fraud in the inducement, a mistake
in the inducement will not cause the will to be invalid. Such innocent
mistakes will not adversely affect the will’s validity. In effect,
no relief is granted for the injured party. See, e.g., Bowerman
v. Burris, 197 S.W. 490 (Tenn. 1917). Example: Recently
Karen decided to prepare her will. She was a very wealthy woman. She
and her late husband, Raul, never had any children; therefore, she wanted
to make bequests to her siblings’ children, if they needed it.
Her sister, Jenna, had two daughters, Antoinette and Felicia. Her other
sister, Stephanie, had two sons, Rod and Quentin. Although the will may not be invalidated or changed,
the intended beneficiaries might be able to hold the attorney liable
for negligent drafting. Example: Trudy
and her husband, Ricky, recently drafted their wills. Both provide that
the other will receive the testator’s estate if the other survives
by 30 days. The wills also provide that if Trudy and Ricky die in a
common disaster, their estates are to be divided between two nephews,
Wade and Chad. Ricky dies from a stroke and Trudy dies from cancer fifteen
days later. Since neither will contains any other dispositive provisions,
both estates pass by intestacy to persons other than Wade and Chad.
Wade and Chad sue the attorney who drafted the wills. The court held
that the attorney was liable to the intended beneficiaries, Wade and
Chad, who were damaged by the negligent drafting of the wills. The attorney
owed a duty to Trudy and Ricky to properly reflect their intention in
the wills, taking into account all foreseeable events. Wade and Chad
based their suit on either tort negligence or in contract as third party
beneficiaries. See, e.g.,
Ogle v. Fuiten, 466 N.E. 2d 224, (Ill. 1984); Needham
v. Hamilton, 459 A.2d 1060 (D.C. 1983). Ultimately, the testator is responsible for ensuring
that the will accurately reflects his intentions. This is crucial, since
once the testator dies; there usually is no way to rectify any problems
with the will. Courts will not step in to rewrite someone’s will. Special consideration for attorney-draftsman as beneficiary
or fiduciary Attorneys are held to a higher standard when it comes
to undue influence claims. A bequest to an attorney is particularly
susceptible to a claim of undue influence because of the confidential
and fiduciary nature of the attorney-client relationship. Accordingly,
many courts presume there was undue influence in instances where the
attorney drafted the will. See, e.g., Carter
v. Williams, 431 S.E.2d 297 (Va. 1993). Example: After
Mildred’s husband dies, Clarence, her attorney becomes her lover.
This relationship continues for several years until her death. Three
years before her death, Mildred had another attorney (independent) prepare
her will. This will left almost all of Mildred’s property to Clarence.
When Mildred died, her sister, Bea, contested the will on the ground
of undue influence. Clarence countered that Mildred acted on the independent
advice and counsel of her attorney. The court held that the will was
invalid. The court cited that this independent attorney was not diligent
enough in probing Mildred about her family history or her relationship
with Clarence, particularly, in not questioning why she was giving so
much of her property to a nonrelative to the exclusion of blood relatives.
As such, the independent attorney was labeled a mere “scrivener”
and in its view the intimate relationship between Mildred and Clarence
was such that the presumption of undue influence was not overcome. See
In re Will
of Moses, 227 So.2d 829 (Miss. 1969). New York takes an even harsher view of undue influence
in these circumstances. In New York, attorneys are required “to
explain the circumstances and to show in the first instance that the
gift was freely and willingly made.” See
In re Putnam’s Will, 257 N.Y. 140 (1931). This explanation
takes place at a hearing, even if the will is not contested and no objection
to the gift is filed. Another dim view of the practice of writing a will
under which you are a beneficiary comes from Texas. Specifically, the
Texas statute voids a testamentary gift to the attorney who prepared
the will, his spouse, or his employee, unless any of these parties were
related to the testator. See Tex.
Prob. Code § 58B. Conversely, if the will was prepared by another attorney,
whereby the testator received independent legal advice, no presumption
of undue influence arises. See, e.g.,
Frye v. Norton, 135 S.E.2d 603 (W. Va. 1964). Clearly, these safeguards were put into place to protect
the testator from potentially being unfairly influenced by a trusted
adviser. Safekeeping of wills A testator’s first inclination may be to keep
the will in a safe deposit box, along with other important papers. This
option could cause delay in locating the will because access to a decedent’s
safe deposit box to search for the will requires an ex parte court order.
As an alternative, the will can be deposited in a will safe or vault
of the attorney who drafted it. Lastly, for a nominal fee, the will can be deposited
in the will safe at the surrogate court. This last option could be inconvenient
if the testator decided to change the will at a later date. In some
jurisdictions, process must be served on the beneficiaries and fiduciaries
named in the earlier will if their rights and interests are adversely
affected by the later will. |
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