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I. INTRODUCTION  The Power to Transmit Property at Death o The Right to Inherit and
The Power to Transmit Property at Death
The Right to Inherit and the Right to Convey
The West has put a very high premium on the right to dispose of property at death (including the right to disinherit anyone except spouses)
Hodel v. Irving (pg. 3)
Facts – Members of the Sioux Tribe alleged that the Indian Land Consolidation Act, by making fractional interests in land escheat back to the tribe, was a
This is a taking.
SCOTUS establishes that everyone has a right to dispose of their property at death (not the right to inherit).
This right is one in the bundle of sticks, and cannot be taken, no matter how small the interest in the land is.
This case comes very close to establishing a Constitutional right to devise property at death, but does not go all the way.
After this case, Congress passed the American Indian Probate Reform Act, which replaced state probate law with federal probate law and provided that if a
decedent owned less than a 5% share in land, only the eldest child or grandchild would inherit and it would not be divided further.
Shaw Family Archives v. CMG Worldwide (pg. 10)
Facts – Ps argued they were entitled to publicity rights of Marilyn Monroe because of the residuary clause in her will.
Marilyn Monroe could not convey publicity rights in her will because such rights did not exist when she died.
CA tried to reverse this by making the statute creating publicity rights retroactive, but NY law applied because the court determined Monroe was domiciled
in NY when she died.
Like Hodel, this case revolves around the rights of people to dispose of their property, NOT the right of others to inherit.
The Problem of the Dead Hand
Restatement (Third) of Property: Wills and Other Donative Transfers (2003)
§ 10.9  The controlling consideration in determining the meaning of a donative document is the donor’s intention. The donor’s intention is given efect to
the maximum extent allowed by law.
Rationale = property owners have nearly unrestricted right to dispose of property as they please.
“dead hand” control
Decedent exercises power of beneficiary by conditioning the gift to beneficiary upon beneficiary behaving in a certain way
Generally dead hand control is OK
Cant be in violation of constitution or public policy
Illegal/ Impermissible uses of dead hand control
Absolute restriction on marriage
Requiring beneficiary to practice certain religion
Gifts that encourage/ require divorce
Gifts that direct property to be destroyed
Shapira v. Union National Bank (pg. 28)
Facts – Father’s will provided that his sons could not inherit unless they married a Jewish girl with two Jewish parents within 7 years of his death.
Court upholds the will.
Father has the absolute right to dispose of the property in the way he wants
It wasn’t unconstitutional because it did not limit the right to marry, only the right to inherit.
However, the court also looked into the restriction itself under a reasonableness test and held that it didn’t violate public policy because
it was only a partial restraint on marriage and not a total restraint.
If the restriction were unreasonable, then it might be unconstitutional.
Posner argues for cy pres approach to allow modification of conditions to testamentary gifts
Restatement (Second) of Property: Donative Transfers
§ 6.2  a restraint unreasonably limits the transferee’s opportunity to marry if a marriage permitted by the restraint is not likely to occur.
Today, most courts apply a reasonableness test to restrictions to marry in wills, but some courts will hold the restrictions invalid without consideration of
their reasonableness.
Incentive Trusts
Conditional gifts like in Shapira are today typically done as incentive trusts
People can leave their property in trust and the benefits can terminate if the beneficiary does or does not do certain things.
This is useful motivation to encourage beneficiaries to be productive members of society
However, it can also backfire and does not account for changed circumstances
Transfer of the Decedent Estate


Probate and Non-Probate Property



Probate Property


Property titled in the name of the decedent

passes under will or through intestacy


Non-Probate Property


Property that passes outside of probate under an instrument other than a will

property that is not titled in the name of the decedent Examples


Joint tenancy property (both real and personal)



Joint tenancy with right of survivorship


Tenancy by the entireties


Life insurance (so long as there is a named beneficiary)

Pension funds/retirement funds (payable-on-death POD provisions)


Interests in trusts


Administration of Probate Estates (Process)



Decedent dies


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either you execute one OR the legislature drafted one for you in the intestacy statute


Personal representative named to be in charge of the process


If there’s a will, this person will be named in the will (aka executor)

If there’s no will, court will appoint someone according to statutory next-of-kin hierarchy




primary or domiciliary = where decedent domiciled at time of death


ancillary administration = for real estate, where property is located


Personal representative files petition with probate court



Probate court reviews the petition (without hearing)


Petition must identify name of decedent, date of death, interested parties, name of personal representative, etc.


Letters of administration are issued by the court


These say that X was designated as the personal rep. of the estate of Y

Allows personal rep. to go to banks, brokerages, bring/defend lawsuits, etc. Due Process requirements for letters of administration


Notification of all interested parties




will is invalid


If there is a will, you have to notify BOTH the people named in the will AND the people that would take if the





Might be difficult for personal representative to identify creditors

Publication in a newspaper of general circulation in the area where the will is being probated


Publication must include statute of limitations to make claims against the estate (from 3-18 months, usually 6-9)


Duties of personal representative


Personal rep. is a fiduciary



Things the personal representative must do

File the petition

Give interested parties notice

Marshall the assets (this can be very difficult, best place to start is tax returns)

Manage the assets

File decedent’s final income tax return

File estate tax returns until the estate is closed

Deal with beneficiaries Carry out the terms of the will/trust or follow intestacy statute



Personal rep. usually has to post a bond

Regular bond = personal representative must go to bondsman for face value of the entire estate (very expensive) Many wills waive bonds and only minimal bonds are required


Possible liabilities If the personal representative distributes property to beneficiaries and the decedent/estate has tax liabilities, then the personal


representative must pay the liabilities on the property already distributed


Two types of probate


Formal/supervised Personal representative must file accounting with the court periodically and every penny has to be recorded and balanced

Informal/unsupervised Personal representatives is still required to be able to account to beneficiaries, but formal accountings to the court are no longer


required Typically only happens when personal rep. is trusted family member etc


Closing of the estate


Prof usually doesn’t file a motion to close the estate but instead just lets it die


No expense to reopen the estate if an asset pops up down the road


Challenging a will


Usually the same statute of limitations as making a claim against the estate as a creditor


Probate is expensive


Some jurisdictions calculate fees as a percentage of the value of assets and some (and UPC) take the value of the services rendered

Professional Responsibility


Duties to Intended Beneficiaries


In most states lawyer has fiduciary duty to intended beneficiaries

So under tort theory 3 rd party beneficiaries can sue for malpractice Under contract theory there must be privity of contract so 3 rd party beneficiaries can sue under it for malpractice

Simpson v. Calivas (pg. 58) Facts – Son sues father’s lawyer for drafting will incorrectly.

Father wanted to give wife life estate in the house, remainder to the son and all other property to the son right away.

This was accurately reflected in lawyer’s notes. The lawyer instead referred to the house as a homestead, and the court gave the wife a life estate in ALL the property and son got nothing until she

died (she was his stepmother). HOLDING

Lawyer committed malpractice because the term “homestead” has a legal significance that a layperson might not understand.

Probably would NOT be malpractice to write the wrong name of beneficiary, because the client should catch that when reading will

The son has standing even though there was no privity, because

(1) he was an intended beneficiary and

(2) the injury was foreseeable

Fiduciary duty runs from drafting attorney to an intended beneficiary

Malpractice suit goes to general jurisdiction court, NOT probate court


The son’s rights are derivative of his father’s reasonable expectations


About 10 states retain the no privity rule and do not allow intended beneficiaries to bring malpractice suits

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Conflict of Interest


Any time a couple walks into your office to do estate planning, there IS a conflict of interest

A v. B (pg. 64)


Facts – Law firm represents husband and wife in estate planning and also represents other woman in paternity suit against husband.

Issue – Can the law firm disclose confidential facts about one client to another client? HOLDING


Yes. Although firm owes duty of confidentiality to husband, it also owes duty to disclose information to the wife in the course of estate planning, and the existence of a child out of marriage is relevant to the estate planning. Firm has discretion to disclose, but does not have a duty to disclose.





The Basic Scheme




Intestacy is common


well over half of the population dies without a will


People don’t like to think about dying

People procrastinate People don’t like dealing with lawyers



Intestacy statutes


Every state has its own intestacy statute

UPC is NOT very widely adopted Older statutes are NOT as mindful of modern higher divorce rates



Governing principle = blood relationships



Two exceptions spouses, adopted children Partial intestacy


People can die partially intestate if their will fails to dispose of all their property

Policy = legislature tries to carry out what would most likely be the intent of the decedent



General rules


If there is a surviving spouse, no children, and parents


Most states = spouse gets everything

Some states = spouse would share with parents WA: S/S gets all community property and portion of separate: ½ if surviving descendants, ¾ if surviving parent. Rest of estate: all to descendants if any, all to surviving parents if any, all to parents’ issue if any, all to grandparents if any, all to grandparents issue if any, if no issue of grandparents,

escheats to state. Once get to “issue of grandparents”, split along bloodlines (e.g. 1 cousin on mom’s side gets half, 42 cousins on dad’s side get other half)



If there is a surviving spouse and 3 children of the marriage


UPC = spouse gets everything (assumption that spouse will benefit children)

Some states divide between the spouse and the children, regardless of whether or not the children are of the marriage



If there is no spouse and three sons


UPC and most states = 3 sons share equally



If there is no spouse, 3 sons, and 6 grandchildren (2 for son #1 and 4 for son #2)


UPC and most states = same as above, 3 sons share equally



Same as above, but the childless son predeceased decedent


UPC and most states = 2 remaining sons divide equally



Same as above, but only the son with 4 children was still alive


Half to the remaining son and half to the 2 kids of the dead son


By right of representation or per stripes



All three sons are dead and only 6 grandchildren are left

Per capita among grandchildren (modern rule)


Each grandchild gets 1/6

English per stripes (traditional rule) By right of representation, 1/4 each for the two sons of son #1 and 1/8 each for the 4 sons of son #2\

Types of Distribution

English Per Stirpes (by the stocks) – right of representation (same thing) (pg 88) System treats each line of descendents equally.

WA: Modern per stirpes – Estate is divided equally to the first surviving generation:

WA: Modern per stirpes – Estate is divided equally to the first surviving generation:

 WA: Modern per stirpes – Estate is divided equally to the first surviving generation:

Per capita at each generation – UPC approach – per capita at each generation. Combines 1&2 above

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Survival/simultaneous death



Statutes tend to have one of two rules


Traditional rule

Survival means bare survival (could be a matter of seconds) Janus UPC rule---2-104 and 2-702

Survival must be by 120 hours (5 days) WA RULE

If survival is shorter than this, the beneficiary is treated as having predeceased the decedent and the property goes to the next in line



Drafting Wills Can Trump the Statutory Rules


Most well-drafted wills require beneficiaries to survive decedent by 30-90 days


Janus v. Tarasewicz (pg. 80)


Facts – Cyanide in Tylenol tragedy

Husband and wife digested cyanide around the same time and both were rushed to hospital.

Husband pronounced dead after arrival and wife pronounced dead two days later, although she was probably brain dead entire time. Wife was primary beneficiary on life insurance policy, and husband’s mom was contingent beneficiary and the insurance company paid the wife’s



Mom argued that wife did not survive husband. HOLDING

Wife survived husband.

There was sufficient evidence that the wife survived the husband because her heart beat on its own, and there was minimal brain





Hypotheticals involving sufficient evidence of bare survival


Husband and wife drown in boating accident. Wife was a better swimmer and died after a violent struggle, whereas husband passively submitted to

the drowning. Sufficient evidence of survival? Husband and wife die in plane crash. Wife’s brain is intact and there’s CO in her bloodstream. Husband’s brain is crushed and there’s no CO in his




Negative Disinheritance




allows for negative disinheritance (UPC §2-101) and the barred heir is treated as if he disclaimed his intestate share



Common law


you can’t disinherit someone by providing in your will that you don’t want them to get anything unless your will entirely disposes of all your property

If not, remainder passes through intestacy and heir will take under the intestacy statute



Table of Consanguinity (p93)



If someone has no surviving spouse, children, or parents, you would consult this chart (very rare)


Try to find the person with the most common DNA with the deceased


In drafting a will, you should go through relatives that have an actual relationship with the decedent and then to charity to avoid disputes involving far-removed



Transfers to Children



Meaning of “Children”


Adoptive Children

Historically, adopted children were left out of intestacy statutes

Now, most states define adopted children to be the same as natural children

Four basic approaches

Adopted child inherits only from adoptive parents and their relatives

Adopted child inherits from both adoptive parents and genetic parents and their relatives Adopted child inherits from adoptive parents and also from genetic parents and their relatives, but only if the child is adopted by a

stepparent (old UPC approach) 2008 UPC key determination = whether there was a parent-child relationship (p101)

Hall v. Vallandingham (pg. 97) Facts – Husband died, wife remarried, and new husband adopted the children. First husband’s brother died and the children tried to

inherit the distributive share their father would have received. HOLDING



Children cannot inherit from natural father’s brother, because the children were adopted by mother’s second husband.


This would give adopted children double inheritance.


Prof argues this is not a garden variety adoption

Under the old UPC, the children would take here, because they were adopted by their stepparent

Adult adoption

Most intestacy statutes draw no distinction between the adoption of a minor and the adoption of an adult (in NY, you cannot adopt your lover)

This is utilized by people in atypical relationships (not married/ gay couples) to ensure inheritance

Can preempt will challenges by collateral kindred

Diferent from marriage, because you cannot get out of an adoption

Minary v. Citizens Fidelity Bank & Trust Co. (pg. 103)


Facts – Woman left trust to her husband and three sons, and then to her “then surviving heirs according to the laws…then in force in

Last alive son adopted his wife so that she could benefit from the trust as an heir of his mother.




This is not allowed.


The purpose of the adoption statute was NOT to allow the wife to inherit through her husband against the testator’s




Doris Duke

Doris’ father’s trusts were to go to Doris’ children but she didn’t have any

At age 75, she adopted a young woman, but then they had a falling out

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Doris could not get out of the adoption and the woman got $65 million

Adult adoptions can be used as a type of special power of appointment by bringing the adoptee into the class of remainder beneficiaries

Virtual adoption/equitable adoption/adoption by estoppel

Some people do not have the resources/sophistication to go through formal adoption requirements

Through virtual adoption, adoption paperwork is not properly completed but if certain conditions are met, child will be entitled to share of adoptive

parent’s probate estate.

O’Neal v. Wilkes (pg. 109) Facts – Cook took in a girl that no one else wanted and raised her as his own. Never formally adopted her, but referred to her as his

daughter. Administrator of Cook’s estate refused to recognize her as his daughter. HOLDING


Not an adoption.


Adoption is a statutory process and it was not satisfied here.


No one had the legal authority to contract for the adoption.

Dissent – We should look to the reality of the relationship through a moral and equitable approach. This doctrine has NOT been widely accepted, but some states allow it in unusual circumstances

Posthumous children


Children born after the death of the father are given rights to inheritance, with limitations

rebuttable presumption if the child is born within 280 days of the death of the husband, the child is treated as being in existence as of the time of



conception and therefore surviving the husband Anything more than 280 days burden falls upon the child to prove parentage

Uniform Parentage Act child born within 300 days of death of husband is presumptively the child of the husband

Nonmarital children


At common law could not inherit from either parent

Now, all states permit inheritance from the mother

They should be able to inherit from both parents according to bloodlines Very problematic because it can be very difficult to prove relation to decedent (DNA might be improving this)

Reproductive technology and new forms of parentage Hecht v. Superior Court (pg. 117)

Facts – Boyfriend devised 15 vials of sperm to his girlfriend. His adult children wanted to destroy the sperm.



Court awarded the sperm to the girlfriend.

Woodward v. Commissioner of Social Security (pg. 118) Facts – Husband donated sperm when he got sick and then he died. Wife used sperm for artificial insemination two years later and

sought social security benefits for the children. District Court certified questions of whether they were his children to the Massachusetts Supreme Court. HOLDING


In some limited circumstances, posthumously conceived children can enjoy inheritance rights.


This is a case-by-case determination.


Key question is whether or not the husband consented to



(1) the sperm being used to conceive children posthumously and


(2) supporting such children.


Balance the interests of:


The children (treated like all other children and not discriminated against due to accident of their birth)


The state (prompt and accurate administration of benefits)


The reproductive rights of the decedent

In re Martin B. (pg. 126) Facts – Martin granted a trust, and the trustee could distribute money to Martin’s “issue” during his wife’s life. James (Martin’s son)


predeceased Martin, and James’ wife Nancy was artificially inseminated by James’ sperm after James’ death.

Issue – Do the children qualify as “issue” under the terms of the trust?


Yes. Look to grantor’s (Martin’s) intent. Even though he probably didn’t contemplate this, he intended to provide for his children’s children.


Surrogate motherhood and married couples/assisted reproduction and same-sex couples

There is a lot of confusion over the property rights involved in these cases and a lot of work to be done to provide clarity




Gifts given during lifetime are calculated in to total estate


Parallel concept with wills (satisfaction)


Common law Any lifetime gift was presumed to be an advancement a prepayment of the child’s share of the estate


Many states

Lifetime gift is presumed NOT to be an advancement but is subject to rebuttal evidence that it was in fact intended to be an advancement


UPC and some states


Requires that the intention to make an advancement be made in writing signed by the grantor or grantee



Guardianships, Conservatorships, Custodianship, and Trusts


These are relevant when dealing with minor children or incompetent/incapacitated people


Guardianships and conservatorships are expensive and time-consuming (must report to the court)



Generally refers to taking care of the physical person

Also used to have a “guardianship of the property”



Replaced guardianship of the property

Now this refers to taking care of the property of the person



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Something like conservatorship – person given property to manage on behalf of a minor



Strategies to avoid guardianships/conservatorships


Create a trust

Power of attorney



Uniform Transfers to Minors Act


You can create a custodial account for your minor child under this act

However, a trust is probably better because you can condition the use of the funds


Bars to Succession





Majority Rule


Most states forbid slayers from inheriting from their victims

Most states treat the slayer as having predeceased the decedent UPC provides that the slayer disclaimed the property (treated as having died immediately before distribution)



Minority Rules


Some states allow it, reasoning that there are other punishments

Other states have statutes, others rely on judicial decisions

Possible solutions in judicial decisions Legal title passes to slayer (court cant legislate)



Legal title does not pass to slayer (b/c of equity)


Legal title passes to slayer, but equity holds him to be a constructive trustee for the heirs or next of kin of the decedent


Court doesn’t completely ignore intestacy statute if slayer is supposed to take under it

Maintains constant chain of title



Constructive trust = remedy

over to next of kin


Person’s name is attached to title of property, but person doesn’t have any equitable rights in the property court can force the person to turn it


In re Estate of Mahoney (pg. 145)


Facts – Wife convicted of manslaughter of decedent. There was NO slayer statute that governed.


Court remands the case to determine whether it was voluntary or involuntary manslaughter.

Most states do not allow people to opt out of the slayer statutes (if H thinks W is crazy and might kill him, but doesn’t want to hold it against her)



If voluntary, constructive trust should be created.


Well-drafted instruments and the UPC also prevent slayers from getting non-probate property


Chinese system takes into account not only homicide but also other forms of good/bad behavior




Aka renunciation


Definition = person that is entitled to inherit declines to accept the property


This is generally governed by state law


Generally the person disclaiming is treated as predeceasing



Person might disclaim for federal tax purposes


If so, must comply with IRS Code § 2518 (p153)

Cannot accept benefits and then reject them later Must make disclaimer in accordance with formalities within 9 months after the interest passes


Drye v. United States ( pg. 155)


Facts – Son of intestate mother disclaimed because he owed the IRS backtaxes and wanted the money to go to his daughter.


You cannot disclaim when the IRS comes calling.



Disclaiming to qualify for Medicaid


This area is in limbo whether you can disclaim or not


Troy v. Hart (pg. 156) Facts – Medicaid recipient appeared to be incapacitated, and his siblings got him to sign a disclaimer without the knowledge of the

power of attorney. HOLDING



Court held the disclaimer valid, but said the amount disclaimed had to be reported to the Medicaid authorities and might


be subject to an action by the state to recover the funds. Basically have to disclose to Medicaid your wealth or potential wealth so if you disclaim an inheritance that would disqualify you from Medicaid you still may not qualify b/c Medicaid will take that into account





Mental Capacity



The Test of Mental Capacity


Requirements to make a will


Requirements are very low

Testator must be an adult (most places 18 y.o.) Testator must be sound mind:

Must be capable to:



Know the nature and extent of his property


Know the natural object of his bounty

blood relatives)


There’s a natural category of people that we would expect the testator to want to benefit (spouses, children,

Know the disposition that he is making of that property


Relate these elements to another



There is NO INTELLIGENCE requirement


These are simply general rules to allow people to express their intent to have a will



Burdens of proof

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Majority = presumption of competency (Wilson) Person challenging will has to rebut the presumption

So once there is prima facie evidence of due execution of will party contesting it has burden of proof Minority = burden on proponent of will to show testamentary capacity (Washburn)

In re Wright’s Estate

T was 69 when died – kept junk and old liquor bottles around. Left one house to woman friend, another house to daughter who contested will. Drawer

of will and witnesses said they thought T was of unsound mind, but no medical proof of incapacity and no proof could not conduct own business.

Court probates will. Capacity cannot be destroyed by showing foibles or isolated mental irregularities unless bore directly on testamentary act

Wilson v. Lane (pg. 161)


Testator left will that went to 16 blood relatives and one non relative, who was a person who cared for her later in life






Ofered some proof of dementia (was appointed a guardian for some afairs after she made will)

Relatives argued that she lacked capacity to make will



Strange fear of house flooding

Maybe had alzheimers

Jury found there was no capacity, but the trial court entered judgment n.o.v.


Will was upheld.

Although there was circumstantial evidence the will was shown duly executed so the burden is on those contesting the will

Here evidence was not enough to deprive her of right to make will Eccentric habits and absurd beliefs do not establish testamentary incapacity

Dissent – This was a decision for the jury to make and there was enough evidence to uphold the jury’s decision.


Professional responsibility

If someone comes in with questionable mental capacity, the lawyer may rely upon their own judgment as to whether the person is competent

If lawyer’s good faith belief is that person is incompetent, he can’t draft the will

Ante-mortem probate

Some statutes permit a person to institute a proceeding of a will during the testator’s life to remove uncertainty about testamentary capacity and freedom of undue influence

All beneficiaries to will and testator’s heirs must be parties to action However, it also deprives the person of the opportunity to change the will


Capacity threshold

It takes more capacity to write a deed than to write a will

It takes more capacity to write a will than it does to get married


Why require mental capacity?


Protection of people’s interests

Assures testator’s intent is expressed Protect them from unscrupulous 3 rd parties


Insane Delusions


Insane delusion

False sense of reality to which person adheres despite all evidence to the contrary


A person can have sufficient mental capacity generally to execute a will however, if he is sufering from an insane delusion the will may fail for lack of

testamentary capacity

the insane delusion MUST be related to or drive the will in some way

general insane delusions are not enough HYPO

Woman goes around DC telling people that a man lives on moon and only eats blue cheese

She can do this for years and still write a perfectly valid will

Unless her will gives all or a substantial portion of her property to the man on the moon


In that case the insane delusion drives the will


This test is separate from the mental capacity test Being strange or eccentric is not enough it has to be pretty much crazy


Causation requirement

If the insane delusion does not afect the disposition, then the will is still valid

Most states require the delusion to have a material efect on the disposition Some states require only a showing that the delusion might have afected the disposition


Most common example


False (crazy) belief about a member of the testator’s family causes them to exclude them from the will Diference between insane delusion and a mistake

A simple mistake will NOT invalidate the will

In re Strittmater (pg. 169)

the will.

Facts – Lady’s will gave all her money to a women’s organization that she worked with. Her cousins were her only heirs at law and they challenged


Her will was driven by insane delusions and is therefore invalid.

This decision was motivated by hostility toward women’s movement. But prob just a social/ political decision in ’47 by an old judge with

views on feminists just a relic from the past


Breeden v. Stone (pg. 171)

Breeden left a handwritten will basically leaving everything to Sydeny Stone

Killed himself after writing will and prob being on a coke binge and killing someone a few days before in a hit and run accident His relative contested the will arguing insane delusions

He was moody

Scared of gov’t agents threatening him and his dogs safety Was on a coke binge

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Will was upheld

Basically his delusions went towards his own safety and the will had nothing to do with that so the will is upheld

A will that is written in handwriting of testator and is NOT witnesses in ordinary course of law

Delusions unrelated to will

The will in this case was a holographic will

Half of states allow these


Typically rural or southern jurisdictions


In re Honigman’s Will (pg. 178)

In depression Husband had insane delusions that wife was cheating on him and excluded her from his will.


Facts – Couple lived in new York and made their fortune owning deli shops in NYC

Mr honingman had health problems and surgeries etc and became depressed



Court denied probate of the will. Court placed burden on will proponents to show the insane delusion did not afect the disposition.



Dead Man’s Statutes


These statutes refuse to allow an interested party testify about oral statements made by the decedent


Rationale = only person who knows what really happened is dead


These still exist in a minority of states

Undue Influence




When the will of the person who becomes the testator is coerced into doing that which he or she does not desire to do


Restatement if the wrongdoer exerted such influence over the donor that it overcame the donor’s free will and caused the donor to make a donative transfer


that the donor would not otherwise have made



Undue influence does not require a lack of mental capacity


But it is very common that the testator was vulnerable




Frail Compromised capacity (ie low IQ)





Only the portions of the will that are afected by the undue influence will be held invalid and the rest of the will will be upheld, if possible


Burden Shifting


In most jurisdictions, the person challenging the will must establish a prima facie case of undue influence


must show that:


There was a confidential relationship If a person is in a confidential relationship with someone making a will, he should take precautions in order to show that the will was


fair and not the product of undue influence


Defendant received bulk of the estate

Testator was of weakened intellect



Some jurisdictions allow showing one or more other “suspicious circumstances”


Restatement provides list of some suspicious circumstances (p185)



If this is satisfied, the burden shifts to the proponent of the will to establish there was no undue influence To overcome presumption of undue influence, must show:


Good faith on part of beneficiary (consider who initiated the gift, where executed and in whose presence, consideration for the gift and

who provided it, and secrecy or openness of the gift

Grantor’s full knowledge and deliberation of consequences of actions, and Grantor’s independent consent and action





Evidence to prove undue influence will often be circumstantial and inferential Restatement in the absence of direct evidence, circumstantial evidence is sufficient to raise a presumption of undue influence if the contestant




donor was susceptible to undue influence



Alleged wrongdoer had opportunity to exert undue influence



Wrongdoer had motive or disposition to exert undue influence



There is a result appearing to be the efect of the undue influence


Property was disposed of in a manner testator would not have otherwise done

It’s likely that no neutral witnesses will be able to testify about the alleged influence


Estate of Lakatosh (pg. 182) Rose, Old lady lived alone, no visitors etc


Roger Jacobs began visiting her once or twice a day


Begins helping her with stuf taking her around etc



After a few months Roger suggests that Rose give Roger power of attorney




Roger sent her to his counsin a lawyer to sign the power of attorney

She also made a will giving Roger everything



Will was invalid.

Court looked to the three elements of the burden shifting test:


(1) there was a confidential relationship;

(2) person enjoying such relationship received bulk of the estate; (3) decedent’s intellect was weakened.


Because all three of these were met, the burden shifted to the guy to show that there was no undue influence and he could not do that.

Bequests to Lawyers – Rule 1.8(c)


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Lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client


Sexual Relationships and Undue Influence



A sexual relationship used to be viewed as evidence that undue influence was more likely

More recently, a sexual relationship has been viewed as evidence that the decedent would have wanted the person to benefit (treated as natural object of bounty)

In re Kaufmann’s Will (pg. 191)





Wealthy man had committed relationship with a same-sex partner.

He executed multiple wills that gave larger and larger portions of his estate to his partner.

Family challenged the will.


Undue influence.

The man was vulnerable to his strange sexual preferences.


This is probably not still good law in New York, but probably would be in lots of jurisdictions.


Avoiding Undue Influence Charges for Non-Traditional Relationships


Adult adoption

Not available in all states and cannot be undone if the parties have a falling out

Owning property jointly with right of survivorship

However, if the parties have a falling out, the only way the property can be severed is by going to the court and bringing an action for partition (expensive and problematic)

Revocable inter vivos trust

More flexible can be changed without litigation

You can control your property during your life and then it is disposed of according to the trust at your death Lipper v. Weslow (pg. 193)



Will contest


Sophie Block had 3 kids


One died and left two children


Block’s will, written by her lawyer son, left out the dead son and thereby the grandkids leaving her estate entirely to her two living children


Block resented the grandkids and their mother (daughter-in-law)


Didn’t come visit


Didn’t like her

Weren’t nice etc





No undue influence.

Although there was a confidential relationship and the son benefitted disproportionately, the decedent made her wishes clear and they were



confirmed in statements to uninterested witnesses. Prof thinks the court should have taken a closer look at the suspicious circumstances (drafter got more than his intestate share, lived next door with key to house,


bore malice toward his brother, will was executed 22 days before she died, lady was in bad health, witness was a maid probably paid by the drafter). The burden should have shifted here, but it didn’t.


In will Block explains why she did not like the kids


Normally, you don’t want to have a specific justification for the reasons for excluding someone

Prof says that explanation is not a good idea b/c it sets yourself up to be contradicted

If these go into the will, they can be challenged

If she wanted to do something she had to do something short


“I know XXX exist but I am intentionally leaving them out”

Or write a memo to the file that person is being intentionally left out



No contest clauses/in terrorem clauses




Provision in will that states if a beneficiary under the will sues contesting it the beneficiary loses whatever he was entitled to under the will



Baited no contest clause


Give the possible challenger a gift that they risk losing if they challenge the will

A no contest clause is useless if the person challenging will gets nothing or has very little to lose



Most cases will enforce these UNLESS there is probable cause for the challenge


Some states will not enforce these under any circumstances

Prof puts these clauses in almost every will she does



Avoiding Will Contests



Contests are often based upon lack of capacity and undue influence in the alternative


Things you can do to avoid will contests


Get permission to speak with doctors and get medical opinions on capacity

Try to get nurses to act as witnesses to the will, because they are in a special position to testify about capacity

Have the client write a handwritten letter laying out the testamentary plan

Tape a video discussion Family meeting






When undue influence becomes overtly coercive


Restatement a donative transfer is procured by duress if the wrongdoer threatened to perform or did perform a wrongful act that coerced the donor into

making a donative transfer that the donor would not have otherwise made Latham v. Father Divine (pg. 210)


Decedent made a will leaving everything to Father Divine.


Nieces (not her heirs at law) talked to decedent and convinced her to draft a new will, naming them as beneficiaries.


Before decedent could sign the new will, she fell ill and died


the nieces alleged that Father Divine killed her to prevent her from signing the new will.


Lower Court threw out the complaint for failure to state a claim.



Reversed and remanded. (P’s stated a case for relief)

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If Father Divine killed the lady to keep her from changing her will, a constructive trust would be imposed for the benefit of the beneficiaries under the second will.

Duress, fraud, and undue influence also used to prevent person from signing new will



If this is the case, a constructive trust can be imposed on behalf of the intended beneficiaries under the new will


A constructive trust can be imposed on an heir who is innocent if other heirs unduly influence a person not to make a will that would benefit someone else and die


intestate instead Reasoning = they wouldn’t have benefitted at all under the will








When the testator is deceived by a deliberate misrepresentation AND


The misrepresentation causes testator to dispose of property in a way he would not have if misrepresentation was not made


Misrepresentation includes:



(1) the intent to deceive the testator and


(2) the purpose of influencing the testamentary disposition


Two types of fraud


Fraud in the inducement


When the testator is misled about material facts which causes him to sign a will he would not normally sign


Doesn’t address the will per se but just important facts


Example an heir promises to convey property to a person that the testator wants the property to go to so that the testator doesn’t put that

provision in the will and the heir had no intention of conveying the property


Fraud in the execution


When a person intentionally misrepresents the character or contents of the instrument signed by the testator which does not in fact carry out the

testator’s intent Example putting a will in front of a person that is pretty much blind and telling them it is a deed and having them sign it





Similarly to undue influence, only the portion of the will procured by fraud will be invalid and the rest of the will will stand, if possible


Fraudulently procured inheritance is invalid only if the testator would not have otherwise devised the property if he knew the true facts




A man defrauds a woman into “marrying” him even though he was already married and they live happily together for a year

Even though the marriage was a fraud, the woman leaving everything to the husband might not be a result of the fraud, because she might have

done that based upon their intimate relationship, and not necessarily the legal characterization of their relationship


Puckett v. Krida (pg. 209)


changed her will to benefit the nurses.


Live-in nurses convince a woman that her relatives were wasting her money and wanted to put her in a nursing home, neither of which was true. The woman


Holding – Fraud in the inducement.


There is a distinction between fraud and undue influence

Tortious Interference with an Expectancy


Brought in tort, and NOT in probate courts



You are seeking tort damages from the wrongdoer, NOT challenging the will A no contest clause would not apply here because this is not a challenge of the will


A plaintif is expected to exhaust probate remedies first, so long as they have notice and the probate remedies are adequate


A will contest can act as res judicata to foreclose a claim of tortious interference





Basically the only time you would use this is if the statute of limitations to challenge the will had run out, but the general statute of limitations for torts had not


Statute of limitations for the tort starts running from the time the plaintif discovered or should have discovered the fraud, undue influence, or distress






Reasonable expectancy of inheritance



Intentional interference w/ expectancy through tortuous conduct


fraud, duress, undue influence, but NOT lack of mental incapacity





Tortuous conduct caused the interference



Damages: Not recovered against the estate, recovered against interferer.


Schilling v. Herrera (pg. 215)



Nurse moves in with decedent






convinced her to execute a will (probably undue influence).

Decedent dies and nurse does not notify her brother (heir at law) and puts the will through probate.

Brother brings an action for tortious interference with an expectancy.

Lower Court dismissed his complaint.



Reversed and remanded.

If the nurse did this, then he would be entitled to relief. b/c fraud was not discovered until after probate had finished (and brother was not notified of death and probate) he wasn’t prevented from bringing

suit b/c he hadn’t exhausted all remedies


Anna Nicole Smith




Decedent’s son was trying to get assets out of the probate stream so that she couldn’t get to them

She brought a tortious interference case and ultimately prevailed





Execution of Wills



Attested Wills


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The functions of formalities


Ritual function = makes the testator aware of the severity of executing a will

Evidentiary function = increases the reliability of the proof presented to the court

Protective function = safeguards testator from undue influence, fraud, duress Channeling function = easier for courts to determine testator’s wishes if all wishes are recorded in standardized forms


Basic formalities


In writing

Signature by testator Attestation by witnesses

Attestation clause

An attestation clause provides that the will was duly executed

These are not required in any state, but it gives rise to a presumption of due execution and it’s probably malpractice if you don’t include one Will’s execution can be upheld even if the witnesses predecease the decedent or can’t remember the execution

Affidavit of execution

This is a modern approach that allows the testator and witnesses to swear before a notary public that they signed the will properly

Makes it very difficult to challenge the will on execution grounds

Two step self-proving will

A separate affidavit is appended to the end of the will, and it contains an oath of the witnesses (and often the testator) that the will was


validly executed


One step self-proving will

Testator and witnesses sign only once and the affidavit language is folded into the attestation clause


Strict Compliance: Writing, Signature, and Attestation:


Under the traditional rule, for a will to be admitted to probate, it must be in strict compliance with the formal requirements of the applicable Wills Act



Will must be

(1) in writing;

(2) signed by testator;

(3) signed by at least two witnesses; and (4) any additional requirements of the jurisdiction


Formalities in execution serve a purpose and we don’t want to enter the slippery slope of whether or not the execution was adequate to convey the testator’s


Need to balance the need for a clear rule to avoid litigation with fairness toward people without resources and their right to dispose of their property as they want In re Groffman (pg. 228)


Facts – Testator acknowledged his signature to the two witnesses separately and neither witness saw the other witness sign.



Will Invalid.

Procedure wins over substance.

The testator did not satisfy the requirements of the Wills Act. Lawyer here screwed up Stevens v. Casdorph( pg. 229)

Facts – Testator signed a will at the bank, and then the bank manager took it to two tellers to sign as witnesses.


Will Invalid.

Two problems:


(1) witnesses were not present when testator signed and he didn’t acknowledge his signature or publish the will as his and


(2) the testator was not present when the witnesses signed the will (line of sight rule).

Dissent – This approach is too strict and we are supposed to focus on the intent of the testator.

“Presence” in will execution



Line of Sight Test

Most jurisdictions apply the line of sight test Requirement that the witnesses sign in the presence of the testator is satisfied only if the testator is capable of seeing the witnesses in

the act of signing (does not actually have to see them sign, only has to be able to see them sign)

Conscious Presence

Some jurisdictions apply the conscious presence test Witness is in the presence of the testator if the testator, through sight, hearing, or general consciousness of events comprehends that the

witness is in the act of signing



UPC dispenses with “presence” requirement and provides two options

Signed by two people within a reasonable amount of time after witnessing signing of the will or acknowledgement of the will Acknowledged to a notary public

The meaning of “signature”


Signature by mark, with assistance, or by another Preferable to have a full name signature, but a mark, cross, nickname, or abbreviation will probably be sufficient

Typing up a will and typing the “signature” in a cursive font can be sufficient (Taylor v. Holt) Order of signature

Generally, testator should sign before witnesses


If everything happens in one transaction, the order is not critical Subscription and addition after signature

Subscription = requirement that the testator sign at the end of the will


This applies in a few states

Addition after signature o If you handwrite something on a will If written AFTER the testator signed will is probated and the handwritten addition is inefective because


it’s an invalidly executed codicil If written BEFORE the testator signed will might not be probated

Delayed attestation NY requires witness to sign within 30 days

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UPC requires “reasonable time”

Some cases say signature after the testator’s death is even ok


The meaning of “writing” Will doesn’t have to be on paper only need a reasonably permanent record


Interested witnesses and purging statutes


Interested witness

witness that stands to benefit from the will


Traditionally, a will would be invalid if any required witness was an interested witness

Parsons Case

Facts – Lawyer got an interested witness to disclaim any interest under the will in an efort not to have the will invalidated.

Holding – Invalid. Witness must be disinterested at time of signing will.


Purging statutes tried to remedy this by purging the benefits of the interested witness instead of throwing out the entire will

would have received in intestacy

Most states have purging statutes that purge only the benefit that the witness would receive under the will that is in excess of what the witness

Estate of Morea (pg. 239)

Facts – Son served as witness to a will that he benefitted from. Holding – Will is valid because son actually would have benefitted more under intestacy statute and therefore had nothing to gain from

the will. o UPC and a minority of states do not require witnesses to be disinterested Recommended method of executing a will pp. 242-245


Safeguarding a will


3 possibilities as to where to keep a will

Testator keeps it and stores it somewhere

Problems w/ each

Law firm keeps the will at testator’s request


File the will with the probate court

Testator could destroy, damage, misplace, scribble on the will or relatives could try to destroy it after death


Law firm has burden of keeping will and periodically reminding testator it is in the firm’s possession If the court has the will, it is difficult to change the will quickly Multiple originals = horrible idea


Curing Defects in the Execution of Attested Wills


Excusing execution defects by ad hoc exception

To avoid harsh results of strict compliance, some courts have occasionally excused or corrected an obvious execution defect

Basically some courts will just correct will if obvious mistake (others wont)

In re Pavlinko’s Estate (pg. 246)

not probated. Husband dies and they try to probate his will.

Facts – Husband and wife did not speak English and mistakenly signed each other’s wills (mirror image wills). Wife dies and her will is

Holding – Invalid. The court applied the 4 corners rule and held the will was a nullity and total nonsense.

Dissent – This is ridiculous. We should apply the 8 corners test and that would show us the clear collective intent of the husband and


In re Snide (pg. 250)

Holding – Will was upheld. Court allowed exception to strict compliance rule.

The will they signed contains incorrect provisions that don’t make sense

Facts – Husband and wife mistakenly signed each other’s will.

Dissent – Majority misconstrues the case law, which weighs heavily in the direction of invalidating the will.

This case was roundly criticized when it was decided

Which will would you apply for probate?

The will that makes sense is not signed by the decedent

Curative Doctrines: Substantial Compliance and Harmless Error

Substantial Compliance





court may deem a defectively executed will as being in accord with the statutory formalities if the defective execution


nonetheless, by clear and convincing evidence, fulfills the purposes of those formalities Finding of a formal defect should not lead to automatic invalidity, but to a further inquiry:


Does the noncomplying document express the decedent’s testamentary intent, and

Does its form sufficiently approximate wills act formality to enable the court to conclude that it serves the


purposes of the wills act


In re Will of Ranney (pg. 253)


affidavit said.

Facts – Witnesses signed a two-step self-proving affidavit without having actually signed the will beforehand as the




Wife attacked the will for improper execution.



Court applies the substantial compliance rule and remands to determine whether purposes of the formalities



were fulfilled. Prof is bothered by this case because a lawyer and two other people that work in a law office get away with taking an oath


that isn’t true Prof also personally believes that most jurisdictions would not go this far with the substantial compliance doctrine to


uphold the will

Harmless Error (aka the dispensing power) – NO HARMLESS ERROR IN WA




court may excuse noncompliance with statutory formalities if there is clear and convincing evidence that the decedent intended the document to be his will


UPC Harmless Error Rule



Document is treated as if it had been executed in compliance with the wills statute if the proponent of the document

establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the

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decedent’s will, (ii) a partial or complete revocation of the will, (iii) an addition to or alteration of the will, or (iv) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will In re Estate of Hall (pg. 259)



Facts – Husband already had a will, and then went to make a joint will with his wife.


They wanted the draft to serve as their joint will until the joint will was finalized


they signed it and it was notarized without witnesses.



Wife applied the will for probate but the husband’s daughter from a previous marriage challenged it.




Will is valid.

The husband intended the draft joint will to be his will.



It purported to revoke his original will and he ordered his wife to destroy his original will. Montana had enacted the UPC Harmless Error Rule.

Comparing substantial compliance and harmless error

Lots of similarity, but a few diferences Langbein was the architect of both and he came to prefer the harmless error rule because of its focus upon the testator’s intent


Notarized Wills


UPC provides a will is valid if signed by two witnesses OR signed by a notary

Prof is skeptical because lots of times notaries sign things without having actually seen the person sign the document Prof doesn’t know of any states that have adopted this yet In re Will of Ferree (pg. 266)

Facts – Guy wrote out his will on a will form and had it notarized, but not attested to by witnesses.


Will is invalid.

Having the will notarized did not satisfy the substantial compliance rule.


A notary can serve as an attesting witness if he intends to sign as a witness rather than as a notary

You would still need another witness to satisfy the attestation requirement





A will written in the testator’s hand but not signed by witnesses

Could take the form of a letter, scribble on pad etc

Slightly over half the states recognized holographic wills

Mostly popular in west and south (rural jurisdictions) UPC recognizes holographic wills



In almost all states allowing holographic wills, the signature can be anywhere on the face of the document


However, if the signature is not at the end, there may be doubt as to whether the decedent intended his name to be a signature Often times holographic wills are written in extreme circumstances close to death

Kimmel’s Estate (pg. 269) Facts – Father writes a letter to his sons that says if anything happens he wants his two sons to take his property (specifically listed pieces of




Valid holographic will.

Court focused upon father’s intent.

Phrase “if anything happens” followed by specific pieces of property

Doesn’t seem to be contemplating death

Signing it “Father” was a valid signature, because that’s how he signed all his letters.

Factors pointing toward holographic will

Told the sons to hold onto the letter because it might help them

Sent the letter to the intended beneficiaries

Factors pointing against holographic will

Leaves out natural object of his bounty Lack of clarity court was forced to speculate

Conditional Wills

Some wills are written to become operative if death from a particular event occurs

Most cases presume that the language of the condition does not mean that the will is to be probated only if stated event happens but is instead a

statement (inducement) for making the will (ie they are thinking about death) Eaton v. Brown (pg. 272)

Facts – Lady wrote a holographic will stating that if she died on a journey, she wanted everything to go to her adopted son.

She died after returning from the journey. HOLDING



SCOTUS upholds will.

The conditional language was evidence of why she was motivated to make the will, but wasn’t intended to limit its

efectiveness. At the time, the adopted son would not have taken under the intestacy statute, so this might have motivated the Court’s decision.

Pre-Printed Will Forms

Holographic will statutes vary in how they treat pre-printed will forms w/ handwriting and whether or not it is a valid holographic will

First-generation statutes “entirely written, signed, and dated” in the handwriting of the testator



Traditionally, a will had to be completely handwritten to be a valid holographic will

Ten states still require a holographic will to be entirely in the handwriting of the testator and two of these require the

same for the date



Second-generation statutes “material provisions” Required only the signature and the material provisions to be in the testator’s handwriting

A court could ignore the pre-printed text and uphold the will if looking at only the written portions made sense as a

holographic will Third-generation “material portions and extrinsic evidence” o The court may look to the pre-printed text to give context to the handwritten portions as a holographic will Estate of Gonzalez (pg. 274)

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Facts – Guy filled out pre-printed form and showed it to 2 witnesses. Witnesses signed a blank form that the guy was going to fill in

later and make it neater. Holding – Court upheld it as a holographic will. The pre-printed text served as evidence of his testamentary intent.



Formal wills can be amended by holographic codicils




A testamentary instrument that amends a prior will





In re Estate of Kuralt (pg. 280)


Facts – Man had a formal will

later wrote a letter to his mistress saying he was going to arrange for her to get his property in Montana.



Valid holographic codicil.


NY did not recognize holographic wills, but because the property was located in MT, there was ancillary jurisdiction in MT.

Court looked to his intent and upheld the codicil.

Revocation of Wills



Revocation by Writing or Physical Act



A will is ambulatory it can be modified or revoked by the testator during his lifetime


How to Revoke


All states permit wills to be revoked in one of two ways


1) Subsequent writing executed with testamentary formalities

2) A physical act, such as destroying, obliterating, or burning the will



Oral declarations of revocation are insufficient in all states




Revocation by physical act must be accompanied by intent to revoke

Allows someone other than testator to revoke by a physical act IF performed in the testator’s conscious presence and by the testator’s direction


At common law you would have to do it yourself (could not delegate)



Revocation by Inconsistency


If a subsequent will does not expressly revoke previous one but makes a complete disposition of the property the previous will is revoke by

inconsistency However, if a subsequent will does not expressly revoke the prior will and does not make a complete disposition of the former will, it is viewed as a





Handwriting on a will can give rise to a presumption of revocation


Prof had to get affidavits swearing that the handwritten marks were made BEFORE the testator and the witnesses signed it to probate a will



Revocation is only presumptive and subject to rebuttal



Revocation must be subject intent

So a tear on a will that was not made to revoke will should not revoke the will But this is hard to prove



Revocation by Presumption


If the will is known to be in the possession of the decedent, but cannot be found after her death, there is a presumption of revocation

This presumption can be overcome in certain circumstances (if a disinherited heir had access to the house, if the house burned down, etc.)


Harrison v. Bird (pg. 287)



Facts – Decedent asked her attorney to destroy her will and he tore it into pieces in front of his secretary and brought the pieces to her house in an


Will was revoked. The attorney tearing it up was NOT revocation, but the fact that she was known to have the will and it could not be found gave rise to a presumption

of revocation. Note: this probably would NOT have satisfied the conscious presence rule of the UPC unless the lady was on the phone with the lawyer as he was


tearing it up.



Probate of Lost Wills


In states without a contrary statute, if the will is lost/destroyed without the consent of the testator or not in compliance with the revocation statute,


the will can be submitted to probate if the contents can be proven

(for example, if there is a copy of the will somewhere)


Thompson v. Royall (pg. 290)



Facts – Decedent wanted to revoke her will and codicil but the lawyer suggested she keep them for her reference in case she wanted to make another

Lawyer wrote on the back of will that it was null and void and she signed it.



Will was probated.

She had the intent to revoke the will, but did not do an act of revocation. The writing of the attorney on the back did not touch any of the language of the will as required by the statute.


If holographic wills were permitted in this jurisdiction, she should have written the note herself and signed it and it would have been revoked by


holographic codicil.


If someone wants to revoke a will by writing “cancelled” there are two ways to accomplish it


Holographic codicil revocation

Act of revocation if the word “cancelled” is written across the text of the will



Partial revocation by physical act


Many states allow partial revocation by physical act but many do not


Reasoning for NOT allowing partial revocation by physical act

Revoking a gift to someone = someone else taking a gift, and making a gift can only be done through a testamentary writing Opportunity for fraud



Dependent Relative Revocation and Revival (DRR)



if the testator purports to revoke his will upon a mistaken assumption of law or fact, the revocation is ineffective if the testator would not have revoked his will had he known the truth

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Reasoning = testator lacks true revocatory intent

Example = a testator destroys his will under the belief that a new will is valid, but in fact the new will is invalid


DRR can be applied to only a portion of a prior will


If a second will revokes an earlier will, but some of the second will’s provisions fail, the revocation of the earlier will is presumptively inefective to the


extent necessary to give efect to the dispositive provision in the earlier will that the failed dispositive provision in the later will replaced

Limitations on DRR


Most courts say that DRR can only apply where:


There is an alternative plan of disposition that fails OR

Estate of Ausley (pg. 299) Facts – Lady revoked her will and had her lawyer draft a new will. The new will was not executed because

she wanted minor changes to be made from the draft. HOLDING


DRR was not applied.

Even though the attorney testified as to the new plan of disposition, the testimony was not


sufficient evidence of alternative plan


Campbell v. French (pg. 299) Facts – Person executed a codicil that read “I revoke the legacy to Judy, because Judy is dead” and Judy was

alive. Holding – DRR applied.

Where mistake is recited in the terms of the revoking instrument OR

Possibly Clear and convincing evidence Limited amount of extrinsic evidence allowed


LaCroix v. Senecal (pg.295)


Facts – Lady executed a will and then executed a codicil where she revoked a provision of the will and made minor changes.

The codicil was invalid because one of the witnesses was an interested witness. HOLDING

Original will was not revoked. If the testator would have known that the codicil would not have been upheld, she never would have revoked her will. Estate of Alburn – (pg. 300)

Facts – Lady executed one will, and then a second will (which revoked the first will) and then destroyed the second will.



Second will was not revoked.

There was evidence that the lady destroyed the second will believing that it would revive the first will, but this wasn’t allowed by

statute. The court held she would rather have the second will than the die intestate.




Fact pattern

Person executes will #1 and later executes will #2. Person later revokes will #2.

Does this revive will #1?


Three approaches



A few states/English common law

Will # 1 never revoked Will #2 wouldn’t revoke will #1 until the testator’s death, so the destruction of will #2 doesn’t even technically revive will #1, as it could

not have been revoked until death.


Majority of states Will #2 revokes will #1 upon execution, but upon revocation of will #2, will #1 is revived if the testator so intends.



Will #2 revokes will #1 and will #1 cannot be revived unless re-executed with testamentary formalities or republished by being referred to in a later duly executed testamentary writing


UPC – § 2-509

(a) If a second will wholly revokes a first will and the second will is revoked by a revocatory act, the first will is revived if it is evident from the


circumstances of the revocation or from the testator’s contemporary or subsequent declarations that the testator intended the first will to take efect


as executed (b) If a second will partly revokes a first will and the second will is revoked by a revocatory act, the first will is revived unless it is evident that the

testator did NOT intend the revoked part to take efect as executed (c) If a second will revokes a first will wholly OR in part and the second will is revoked by a third will, the first will is revived to the extent it appears


from the terms of the third will that the testator intended the previous will to take efect


Revocation by Operation of Law: Change in Family Circumstances



Most states have statutes that provide that a divorce revokes any provision in the decedent’s will for the divorced spouse

In the other states, revocation occurs only if divorce is accompanied by a property settlement These normally apply only to wills and not to life insurance policies, pensions, or other nonprobate transfers

UPC applies to both probate and nonprobate transfers


Pretermitted spouse is entitled to intestate share in most states – chapter 7

Birth of Children

Pretermitted child is entitled to a share in the estate in most states – chapter 7



Integration of Wills





all papers present at the time of execution intended to be part of the will are integrated into the will


Problems can arise if pages aren’t properly fastened, there is no internal coherence in the will, fonts are diferent on one page, each page isn’t initialed by the

testator Estate of Rigsby – (pg. 308)

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Facts – Two page holographic will and only one page was signed. The pages weren’t fastened, didn’t refer to each other, and conflicted with each

other. HOLDING

Only the first page was admitted as a holographic will.

The other page could have been a worksheet that was not intended to be a part of the will.


Republication by Codicil




a will is treated as re-executed/republished as of the date of the codicil, even if the codicil does not expressly republish the will, unless inconsistent with testator’s intent




Suppose a testator revokes a first will by executing a second will, and then executes a codicil to the first will the first will is republished and the second will is revoked by implication (squeezed out)