Wills & Trusts Outline
1. TESTAMENTARY
· What law governs your will when you die?
1. Personal Property: Last state of domicile
2. Real Property: State where property is located
· TESTATE (WITH A VALID WILL)
1. Who may execute a will?
a. Age
i. UPC: 18
ii. NC: 18 (N.C. Gen’l Stat. 31-1)
b. Mental Capacity (at time of execution)
i. Sound Mind: Four Part Test (UPC and NC)
a. General Rule:
· A testator has testamentary capacity if he or she [generally]:
1. Comprehends the natural objects of his or her bounty;
2. Understands the kind, nature, and extent of his or her property;
3. Knows the manner in which he or she desires his or her act to take effect;
4. Realizes the effect his or her act will have upon his or her estate.
· Burden of proving incapacity is on the challenger of the will.
b. NC:
· The capacity required to create, amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will.
· The law recognizes the same standard of mental capacity for testing the validity of both deeds and wills, although it is suggested that perhaps a court would scrutinize a deed more closely than a will.
c. Insane Delusion (Generally Sane):
· A person who has sufficient mental capacity generally but is suffering from an insane delusion that has infected a particular provision of the will.
· Definition:
· A false conception of reality
Test:
· Majority: Even if there is some factual basis for it, a delusion is insane if a rational person in the testator’s situation could not have drawn the conclusion reached by the testator (N.Y.)
· Minority: A delusion is insane only if there is no factual basis for it (N.C.)
Lucid Interval (Generally Insane):
A person who lacks sufficient mental capacity generally but at the time of execution has a lucid interval thus rendering him or her competent.
A will made by an insane person may be valid if made during a lucid interval.
A “lucid interval” is not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act; such a full return of the mind to sanity as places the person in possession of the powers of his mind, enabling him to understand and transact his affairs as usual. The term does not necessarily mean complete or perfect restoration of the mental faculties to their original condition; and it is sufficient if there is such restoration that the person is able to comprehend and to do the act with such reason, memory, and judgment as to make it a legal act.
Not Suffering From:
Undue Influence
Definition: Undue influence exists where there has been a fraudulent influence over the mind and will of another to the extent that the professed action is not freely done but is in truth the act of the one who procures the result.
Burden and Elements: The person challenging the will bears the burden of demonstrating undue influence. The burden requires a showing of more than mere influence or persuasion on the decedent in order to submit the case to a jury. To meet this burden, the challenger must show
1. That the testator was susceptible to undue influence;
2. An opportunity by the influencer to exert undue influence;
3. A disposition by the influencer to exert undue influence; and
4. A result indicating undue influence.
· Presumption: If the testator and influencer had a fiduciary (or, possibly, even a confidential) relationship, the burden of disproving undue influence shifts to the influencer. To rebut such presumption, the influencer must prove that no fraud was practiced and no undue influe
Consistency or Natural Flow
Signed by the Testator
Testator or Proxy (UPC 2-502(a)(2); N.C. Gen’l Stat. § 31‑3.3(b)):
§ Testator’s Signature: any mark written (or inscribed) by testator with the intent that it serve as a signature
An “X” will count.
§ Proxy Signature (If testator is physically unable to sign):
At testator’s request (Must be asked to sign my testator)
In testator’s presence (Must sign in presence of testator)
Subscription
§ Must be signed at the bottom, or the end. Any substantive provision that comes after the signature is not part of the will.
§ Not required under UPC or NC law, but advisable.
Attested by Witnesses
Publication by Testator
§ UPC—Not Required
§ N.C. Gen’l Stat. § 31‑3.3(c):
The testator must signify to the attesting witnesses that the instrument is his instrument by signing it in their presence or by acknowledging to them his signature previously affixed thereto, either of which may be done before the attesting witnesses separately.
Presence of Witnesses/Testator
§ UPC 2-502(a)(3) (Text p. 203).
§ 2. N.C. Gen’l Stat. § 31‑3.3(c) and (d)
The testator must signify to the attesting witnesses that the instrument is his instrument by signing it in their presence or by acknowledging to them his signature previously affixed thereto, either of which may be done before the attesting witnesses separately.
The attesting witnesses must sign the will in the presence of the testator but need not sign in the presence of each other.
§ What is “presence”?
