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Wills, Trusts & Future Interests
University of Cincinnati School of Law
Eisele, Thomas D.

General Requirements for a valid attested W
Testator age of majority UPC 2-501 18
W written UPC 2-502(a)(1)
W signed by the testator 2-502(a)(2)
Testator signature is attested by W and W sign theW 2-502 (a)(3)
Testator has mental capacity (testamentary standard) 2-501
Ability to know
                                                              i.      Nature and Extent of Testator Property
                                                            ii.      Natural objects of Testator Bounty
                                                          iii.      Dispositions Testator is making in the will
                                                          iv.      How elements 1-3 relate together to make an orderly plan for disposition of Ts Estate
Testator has testamentary intent which is expressed in the W 2-502(c)
Policies for these requirements
Ritual or Ceremonial
Channeling or standardization
Interpretation or application of the requirements
1.      Strict Literal Compliance (Majority)(CL and ML)
2.      Substantial Compliance (Near Miss)
3.      Dispensing Power (Harmless Error) (1990 UPC)
Importance of Disinterested Witnesses
CL: lack of disinterested witnesses invalidated the entire W
ML: invalidates the entire gift of interested W
CA L: invalidates excess amount would have received under the W by intestacy or prior W Parsons
UPC 1990 2-505: W need not be disinterested (new CA L)
According to Parsons What counts as an interest? REVIEW WHEN LOOK AT PARSONS
Interest=expectancy created when W executed
Interest is a legal property interest created when valid W becomes effective at the date of Ts death
Testator was SUCCEPTIBLE to undue influence
Person accused of undue influence had the MOTIVE to exercise undue influence
Person accused of undue influence has the OPPORTUNITY to exercise undue influence over the testator
One or more dispositions in the will are the RESULT of the alleged undue influence (Proof of Causation
            Explicit or Express
1.      Subsequent valid testamentary instrument 2-507(a)(1)
a.      Valid subsequent writing expressing testamentary intent
b.      Explicit expression of INTENT to revoke the prior testamentary instrument
2.      Physical Act 2-507(a)(2)
a.      Right kind of Act: (cancelling, burning, tearing, obliterating, destroying)
b.      Simultaneous w/ expression of INTENT to revoke prior testamentary instruments
Implicit or Implied Revocation
1.      Subsequent valid testamentary instrument (2-507 (a)(1)
a.      Valid subsequent writing expressing testamentary intent
b.      Some INCONSISTENCY in dispositions b/w subsequent and prior testamentary instruments [no express intent required it is a revocation by operation of law
2.      Subsequent Act or Event
a.      Valid prior writing expressing intent
b.      Subsequent act or event of the right kind marriage divorce birth of a child NO EXPRESS INTENT REQUIRED happens by operation of law
Harrison v Baird
Necessary Act: If the W was last in th

·        Farkas bought 4 stock certificates which were written declarations of trust Farkas got income and could sell redeem or exchange the items the B was Williams
·        Rule: if no interest passes to B b/f the death of the settler then the intended trusts are testamentary and invalid for not complying w/ W
·        RIVT: if RIVT is valid under trust law does not have to have W formality
·        Holding: TRUST IS VALID upon execution of the trust the B acquired an interest in the subject matter of the intended trusts and the control over the trust did not make it testamentary B has an interest and could hold the estate liable for breach of trust
·        Trust formalities: the trust formalities also demonstrate that they were executed in a solemn and formal manner
§         Pilafas
·        Created a W and IVT at same time he kept them up to date; when he died he could not find the W
·        Rule: CL presumption that Ts destroyed W with te intention of revoking it if last seen in Ts possession and cannot find it but THE RULE OF W DOES NOT APPLY TO RIVT
·        Holding: RIVT VALID unlike W RIVT create present remainder interest in B who are entitled to the trust and can insist on full compliance rules of revocation should not be displaced by W