I. Testamentary Freedom
A. What is testamentary freedom?
1. 4 elements
a) right to pass property at death
b) right to decide who gets it
c) right to decide the form in which someone will get your property (ex. Will they get it in trust?)
d) right to give someone else the right to make those decisions (powers of appt)
2. Debate
a) Pro
(1) Maximizing wealth: encourages people to accumulate more wealth and not spend it foolishly. If you can’t pass it on to the people of your choosing, then you would not have an incentive to accumulate more than what you can use during your lifetime
(2) People who own property know their own property and their family situations better than the government
(3) People get some utility in knowing that they are able to make these decisions
(4) If we do not let people pass property onto other people at death, society may have to take care of the dependents of the property owner
(5) Promotes family ties; encourages family members to love, serve, and protect their elders
b) Con
(1) Perpetuates economic disparity and discrimination
(a) Constitutes unearned windfall to those who happen to have wealthy relatives;
(b) Unearned wealth creates power and privilege that is undeserved; and
(c) Unearned wealth denies equal opportunities to all children
(2) Moral Hazard Problem – they do not have to live with consequences
(a) Ex. T cannot require that his house be torn down at death b/c he does not want anyone else to live in it. This is in part because T does not have to live with the consequences
(3) Cannot take into account a change in circumstances
(4) Need to promote other social policies/purposes – spouses & children support
B. Conditional Devises
1. Rule: a devise that is intended to induce tortuous or illegal behavior, to encourage divorce, encourages disruption of family relationships or unreasonably restrains marriage will be invalid
a) The reasonableness of the devise is judged by how likely that this will happen
(1) Shapira v. Union National Bank: father can restrict son’s inheritance by requiring that he be married to or marry a jewish girl with jewish parents – ok because partial restraint; the les likely it is that the condition will/can happen, the more likely it is not to be upheld
b) The court may enforce a devise that is for the event of divorce rather than to promote divorce. Ex. Wife is rich and if son gets divorce he will be poor. Dad wants to make sure to provide for him in case he becomes poor.
c) The law is moving towards the direction of not enforcing any conditions that affect intimate decisions of someone’s life.
2. Effect of invalidity:
a) Give effect to the gift as if the condition were not there
b) The decedent could also provide for an alternative gift on the invalidity of the first condition
3. Examples:
a) To my son, if at the time of my death he is married to a Jewish woman” – ok because not influencing behavior
b) To my daughter in trust, she gets income until she gets married, then to state of Isreal – ok because not intended to influence her decision to marry, only to provide support until married
c) To my son if he gets divorced – If T only set this up because he knew son was married to rich woman, and really just wanted to provide in case he was no longer rich from wife, then ok
C. Ways to pass property at death
1. 3 ways
a) by will
b) will substitutes – far more property passes by will substitutes than by will
(1) revocable trusts
(2) life insurance
(3) payable at death
c) by intestacy
D. Formalities
1. 2 requirements for execution of will
a) intent
b) compliance with formalities of will
2. 4 things affecting validity (all go to the question of intent)
a) mental capacity
b) insane delusion
c) undue influence
d) fraud
E. Intent
1. UPC § 2-502(a) – Can always use extrinsic evidence when it goes to intent (general rule)
a) Must establish a threshold of ambiguity before extrinsic evidence an be used to go to intent – the policy goal of Testamentary Freedom will be furthered
b) When there is extrinsic evidence, it is admissible, but the court may still reject it – there will be a higher burden to show that this was the testamentary intent
(1) Rationale: protect testators who have gone through the trouble of getting a valid execution
2. Intent to execute will must coincide with the execution of the will
a) Ex. T calls lawyer and asks to draft will. T executes with formalities but tells witnesses that he doesn’t really want to make the will but is doing it to induce GF to sleep with him – no intent
II. Intent
A. How they relate
1. Testamentary freedom: freedom to dispose of one’s property at death
2. Testamentary Intent: the desire to exercise testamentary freedom
3. Testamentary Capacity: the ability to form intent to exercise freedom to execute a will
B. Intent
1. Conditional Wills: Ex. I am going on a journey and if I do not come back, I want my property to go to X. D comes back and dies later without ever revoking
a) Majority Rule: This is an effective will even though there is a condition in it.
(1) Rationale: it would be unusual for a person to distribute stuff if they die one way but not another.
C. Testamentary Capacity
1. Definition: memory and understanding necessary to execute a will; whether testator could validly form necessary intent to execute will
a) Must have ability to understand what he is giving away in order to exercise testamentary freedom
b) Rationale:
(1) want the will to reflect the true desires of T
(2) want to protect the family of the person who lacks capacity
(3) want a competent person to be able to execute a will and be secure that he will not be able to change if he later lacks capacity
(4) want to protect society at large from irrational acts
(5) want to protect a person who lacks mental capacity from evil persons
c) Backup plan exists: intestacy; goal if intestacy is to give stuff to people who testator would have wanted to give stuff to. Will not let stuff go to others that are not heirs.
2. Lucid Intervals: the testator must have the requisite capacity at the time he or she performs a testamentary act. Only requires that the testator executes during a lucid moment.
3. Test
a) Requires ability to know:
(1) nature and extent of his property
(2) the natural objects of his bounty
(a) Should understand the nature of his stuff and relationship with friends, family, and acquaintances
(b) people he should be assumed to favor – “Unnatural disposition” – those that seem out of the ordinary given the circumstances; can be evidence of lack of mental capacity
(3) he is making a will and the disposition that he is making
(4) Must manipulate the three elements and understand the relationship of the first 3
b) Test is one of ability to know and not actual knowledge
c) Capacity required to execute a will is less than the capacity to give away during life. Rationale is that we are less concerned if you foolishly give away property at death because you are dead and no longer need it.
d) Evidence of lack of capacity – the more your estate plans vary from what you expect to see, the more you should be concerned about a will contest
(1) Depression
(2) Lack of attention to appearance
(3) Unnatural disposition – those that seem out of the ordinary given the circumstances; disinheritance of blood relatives in favor of non-relatives; favors a relation while disfavoring other relations of the same degree
4. Traditional Rule: Once you lack capacity to execute will, guardian could not execute a will on your behalf.
a) UPC: allows for conservator to execute a will on your behalf; and amend/revoke a will on your behalf.
(1) Court: conservator must come up with strong evidence that this is what person would have done if lucid
D. Insane Delusion
1. Insane Delusion: a belief in a supposed state of facts that does not exist and which no rational person would believe
a) Test:
(1) Whether any rational person would hold that belief?
(a) Majority rule: One can have an insane delusion even if there is evidence to support that belief if a reasonable person would not have believed it
(b) Mistake of facts: Court will not fix mistakes of fact (ex. Testator left nothing because he didn’t believe X to be his daughter and she really is; even if there was a blood test it may still not be an insane delusion because a rational person may not understand or believe DNA test)
(2) Whether the insane delusion affected the will?
(a) The insane delusion is relevant only to the extent that it affects the will; thus one can have an insane delusion and still have a will that is wholly or partially valid; distinguish: someone who does not have mental capacity, the entire will is invalid
(b) Ex. Can make the will wholly invalid if insane delusion affected mental capacity at the time (ex. Because of insane delusion, he did not know the objects of his bounty)
2. Notes re setting forth reasons/facts for your dispositions or disinheritance:
a) Generally not considered good practice
(1) May provide evidence that your disposition was an insane delusion if not correct
(2) Jury may not agree with your reasonable and may disregard your conclusions
(3) May provoke a will contest
(4) Testamentary libel – tort damages that would restructure your dispositions
b) You can draft the reasons and not place in the will. It would not become public unless someone challenges will – would not provoke will contest.
E. Fraud
1. Elements of Fraud
a) Misrepresentation: A person must intentionally misrepresent something to the testator, knowing it to be false when he or she makes the misrepresentation
b) Intended to deceive
c) Does in fact deceive the testator
d) Intended to influence the will
e) Does in fact influence in the will
2. Types of Fraud
a) Fraud in execution: occurs when testators are defrauded about the nature or contents of the documents they are signing
b) Fraud in the inducement: when testators are intentionally misled into forming a testamentary intention that they would not otherwise have formed
c) Distinction: Intent; in execution, the testator has not changed their testamentary intent. In inducement, the testator has changed their intent on how they would like to dispose of their property.
3. Remedies
a) Constructive Trust: Court basically just tells the person who has title to transfer it to someone else
F. Protecting Estate Plan
1. Ante-Mortem Probate (Living Probate)
a) Living probate: an option to “prove” or “validate” their wills while they are still alive
b) Pros: testamentary intent and capacity are the primary issues and the testator could provide great evidence in establishing
(1) However, Only 3 states allow; most lawyers do not practice
(a) Cons:
(i) Concern with family relations (ex. Must go to court and say that testator is incompetent or testator must make known who is being disinherited)
(ii) Expense: not every will is contested and so may go through expense of living probate when it would not have been challenged in the first place
(iii) Can still challenge if you were incompetent; argue that they became incompetent and was unable to revoke
2. No Contest Clauses
a) No contest clause: basically says “if you challenge my will, you will take nothing under my will”
b) Enforceability?
(1) Majority: enforce in some situations and not others; but general goal is to discourage meritless litigation and not claims with merit
(a) If there is probable cause then it will not be enforced; if there isn’t, then it will be enforced
(i) Probable cause: a reasonable person looking at the case would think you had a good case, then you will not be punished for bringing it
(b) Will not allow litigation to be brought as an exploratory attempt to find a valid claim
G. Undue Influence
1. Undue influence:
a) Where the influencer exerted so much influence over the donor that it overcame the donor’s free will and caused the donor to make a donative transfer that he otherwise would not have made
b) Psychological dominance in which the donor could not have done what the influencer wanted him to do
c) The influencer substitutes his will for that of the testator
2. Basic elements:
a) Influence
b) Testator’s will is subverted
c) Testator does what he would not have otherwise have done
3. Objective test – was it appropriate?
a) The fewer options open to the testator, the more likely there will be a finding of undue influence
4. Modern Approach (4 Factors) – Creates a presumption of UI
a) Testator was susceptible to undue influence
(1) Ex: Track record or history of being easily influenced; Age (very young or old), weak mind, or mental condition; Dependent on other people
b) The alleged influencer had a disposition or motive to exert undue influence
(1) Ex: influencer disliked someone who would be disinherited; character of the influencer; moved in and cut T off from family and friends
c) The alleged influencer had an opportunity to ex
speak English. Atty speaks their language and they dictate their wills to the atty who types them up in English. They have reciprocal wills (I leave to spouse, if they die first, I leave to brother/brother-in-law). They sign each other’s will. W dies first. H dies and brother/brother-in-law tries to probate the will.
(1) No for strict compliance and substantial compliance with either
(2) Harm-less error:
(a) For H’s will, the will says “I, Helen” and for it to go to his brother but really should have been brother-in-law. Will not be able to probate the will – he did not mean Helen’s will to be his own and did not want it to go to brother.
E. Signature Requirement
1. Signature: a signature is anything you intend to be your signature – if you intend it to be your signature, then it is sufficient (ex. Patrick Smith signs “Pat” and drops dead – if intended to be his sig, then ok)
2. Sign-First Requirement: Most courts assume that the testator must sign before witnesses
3. Writing below signature (does it qualify as part of will? May still qualify if it is a codicil in itself)
a) Depends on whether or not jx requires the will be subscribed
(1) Required:
(a) If added after signing– original will valid; that portion invalid
(b) If added before signing – whole will invalid
(2) Not required
(a) Added after signing – not part of will
(b) Added before – whole will is valid
F. Attested Witness Requirement
1. Most jx: Requires testator to sign or acknowledge (point) in the presence of witnesses and the witnesses to sign
a) 2 functions:
(1) observatory function – direct and purposeful observation, more than physical presence or casual/general awareness of execution
(2) signatory function – serves to demonstrate and confirm fulfillment of observatory function
2. Tests for presence:
a) Line of sight standard: Ws must see or have the opportunity to see (if the party were to look or slightly alter his or her position) the T sign or acknowledge his or her signature, and T must see or have opportunity to see Ws sign the will
b) Conscious Presence Test: through collective sense, can sense that the required act is being performed or sense the presence of the Ws.
3. Delayed attestation: if the statute requires the witnesses to sign in the testator’s presence, the witnesses must sign the will at the same time as the testator and in the presence of the testator. If the statute does not expressly require the witnesses to sign in the testator’s presence, the modern trend permits the witnesses to sign the will later (delayed attestation), even after the death of the testator, as long as the witnesses sign within a reasonable time period.
a) 15 months is not a reasonable time – even if emotional trauma from T dying prevents
4. Interested Witnesses – someone who is a devise under the will; interested witnesses will be less credible in court because they are testifying in favor of a will that will give them something
a) Old law: Entire will is void because we need disinterested witnesses for testifying for probate of the will.
(1) Purging statute: eliminates devise to interested witness, thus making the will disinterested; but holds remainder of will valid
b) Modern
(1) Purging: Interested W will not lose gift, but loses excess over what he would have gotten, had this will not been executed
(a) If W was not devise of previous will, excess is everything
(b) Policy: we want people witnessing who have testator’s best interests at heart. We do not want people in room at time of execution with an incentive to benefit someone other than T.
c) UPC: interested Ws are not disqualified as attesting Ws and do not forfeit any portion of their devises
(1) Policy: cost of finding uninterested Ws is too high
d) CA: blend of modern purging statute & UPC approach; if you are interested W, a presumption arises that the witness committed some sort of act of fraud or undue influence to procure gift.
(1) If W overcomes presumption = entire will is valid
(2) If W fails = Modern purge approach; excess is purged
e) Examples:
(1) Will 1 leaves G 70k in stock. Will 2 leaves G 50k in real property. Will 2 revokes W1. G was witness to W2 but not W1. What does G get?
(a) Traditional: G takes nothing
(b) Modern: G gets “excess” – so 50k
(c) If was not interested in 1st will and was not an heir, he would get nothing
(2) W1 devises 30k in stock; W2 50k real property. W to 2nd will
(a) Traditional: nothing
(b) Modern: 30k in real property (not stock)
(c)
G. Self-proving wills
1. Attestation clause: “on this day, testator signed in our presence” – prima facie evidence that he signed name
2. Self-proving will: Affidavit after will has been signed and attested, you sign a second document saying “on this day, he signed and we witnessed”
a) In some jxs it’s conclusive evidence that execution ceremony took place as prescribed. In order to challenge execution, must challenge affidavit
H. Holographic Wills
1. Holographic wills: will that is written in the hand of the testator
2. Requirements
a) Writing – Material provisions must be in testator’s handwriting – who? Name of beneficiaries. What? What they are taking.
b) Signed
c) Witnesses – ½ states allow unwitnessed holographic wills
