We allow people to exert some dead hand control over their property. This right to bequeath adds value to the property.
ILLUSTRATIVE WILL – PAGES 391 – 393
Is Will Valid?
If unwitnessed, handwritten will – dealing with a holographic will. May be valid, depends on jxn.
A holographic will is an unwitnessed will, handwritten and signed by the testator. Holographic wills are allowable in about 25 states. Issues arising from holographic wills include: integration of disconnected handwritten pages into a single holographic will, forgery, and belated discovery of the holograph.
Zhao v. Wong – “All Tai Wong’s à Xi, my best half. TKW 12/31/92.” CT: This cannot constitute a will, holographic or otherwise. Though no particular words are required to create a will, the document purporting to be a will must contain some indication that it is intended to convey something upon death. This “will” does not contain operative words legally sufficient to create a devise of property.
How much of the holographic will has to be in the testator’s handwriting? In some states, the entire will. If the will is written on letterhead, that causes an issue. In other states, only the material provisions of the will must be in the testator’s handwriting.
Otherwise, Were Will Formalities Met? UPC §2-502 (Page 224)
1. In Writing
2. Signed by Testator[or in the testator’s name by some other individual in the testator’s presence and at his direction] a. Signature Requirement:
b. Testators must sign their wills, but almost any imaginable signature will suffice. The requirement that the signature be at the end of the will has been eliminated from the UPC – as long as testator signs the will somewhere, the signature requirement is met under the UPC. But a “non-end” signature requires the proponent of the will prove that the testator intended to validate the will.
c. Testator may:
i. sign will themselves
ii. sign by proxy, provided proxy signs at testator’s direction and in testator’s presence
iii. have someone help them sign will themselves
iv. sign electronically, at least if in the presence of witnesses and with the intent to sign (Taylor v. Holt)
d. GA §53-4-20: (a) A testator may sign by mark or by any name that is intended to authenticate the instrument as the testator’s will.
3. Signed by two witnesses
a. Witness (Attestation) Requirement
b. Wills must be attested (witnessed) by a minimum number of competent (or, able to testify in court) witnesses. The minimum number of required witnesses is two in most states. When deciding who to choose as witnesses, atty should choose those witnesses that will be easy to locate and able to testify at the testator’s death, as when the will is offered at probate, the proponent must call the witnesses to testify that the signatures on the will are indeed their own signatures. Furthermore, witness choices should be those that minimize conflict and facilitate probate.
c. Some statutes establish procedures to deal with unavailable witnesses (NY §1405(1) – Page 233).
d. Some statutes also impose limits on interested parties serving as witnesses: “interested witnesses” (NY §3-3.2 – Page 235)
e. GA §53-4-20/22: Must be two witnesses, competent and age 14 or over.
f. GA §53-4-23: (a) If the subscribing witness is also a beneficiary under the will, the witness shall be competent; but the testamentary gift to the witness shall be void unless there are at least two other subscribing witnesses to the will who are not beneficiaries under the will. (b) An individual may be a witness to a will by which a testamentary gift is given to that individual’s spouse.
g. GA §53-5-21: The testimony of only one witness shall be required to prove the will in solemn form if no caveat is filed.
4. Who actually witnessed the signing of the will[or the testator’s acknowledgment of that signature]
a. “Witness Presence” Requirement:
b. Morris v. West – witnesses signed the will in a room down the hall from the testator. “Conscious presence” is defined as “to be within the testator’s presence, the attestation must occur where testator, unless blind, is able to see it from his actual position at the time, or at most, from such position as slightly altered, where he has the power readily to make the alteration without assistance.” Because testator would have had to leave his chair, walk down a hall, and turn – which is more than “slightly altering” his position – formality not met. Will invalid.
c. Current trend: Legislative trend is to eliminate the witness presence requirement from required will formalities.
d. GA §53-4-20: Georgia has a line of sight test – witnesses must sign so that testator’s line of sight could see them sign.
e. Post Mortem Witness Signature: comments to UPC §2-502 suggests that a witness should be allowed to sign the will after the testator’s death, as long as the signing occurs within a “reasonable time” of testator’s will execution.
f. Attestation Clauses – boilerplate language that states that “will formalities” were satisfied and provides space for witness signature. A signed attestation clause creates a presumption that the will was validly executed. So, if a will has an attestation clause, the will may be probated even though the witnesses can no longer remember the execution, as long as the witnesses can identify their signatures on the attestation clause. Demonstrates present intent to be a witness
g. Self-Proving Affidavits – [designed to get around the issue of finding witnesses at probate time] A self-proving affidavit substitutes for witness testimony at the probate hearing; the affidavit says that the witness has performed the act of witnessing and signing the will. Documents past actions – acting as a witness
h. GA §53-4-24: Allows testator to make will before witnesses and notary public, using a self-proving affidavit.
The Statute of Wills serves four functions: (1) protective: protects testator from fraud, undue influence, mistake, fraudulent suppression of a valid will after testator’s death, (2) ritual: rituals require reflection on the seriousness of the situation [this is the stand-in for the requirement of delivery of an inter vivos gift], (3) evidentiary: provides physical record of testator’s wishes, and (4) channeling: provides standard form that courts come to rely on, creating a “channel” through the legal system for those documents that conform to the standard.
The Ideal Will Execution Ceremony:
Estate planners should consider: (1) what formalities does the law require for execution of wills? (2) what procedure should an attorney use in supervising an execution ceremony? (3) what should a court do if a will does not full comply with formalities?
Generally, all execution ceremonies should:
Have the will in final form, pages numbered and fastened together
Will should include an attestation clause, and if allowable by state, a self-proving affidavit
At least two (locally available, likely to survive the death of the testator) witnesses, more if there a risk of will contest
If witnesses are strangers to testator, allow witnesses to observe testator in order to determine whether testator has capacity to sign the will.
Devisees under will should not be present during the execution, for risk of claims of undue influence.
Do not let people leave the room until the formalities are completed.
Attorney should ask testator if this is their will and whether they would like to sign it.
Witnesses should actively observe the signing of the will, and the testator should initial each individual page.
Attorney should ask testator to declare to the witnesses that this is her/his will, and ask witness to attest and subscribe the will.
As the witnesses sign, the signature of the testator should be visible to them.
Safe deposit box (but might be locked at testator’s death); Local probate court, if allowed (but maybe forgotten); executor, if executor is a bank; leave with attorney
Is Will Void Against Public Policy? Court will not enforce.
Void Against Public Policy:
Matters when a will contains a restriction that would be void against public policy
However, the deceased do not have unlimited control over their property after death. For example, while we allow living people to make agreements that are void against public policy, a court will not enforce wills that are void against public policy.
vii. Georgia does not have a “separate writing” statute.
c. IF NOT INCORPORATED BY REFERENCE, does the will refer to an event or document with significance outside of the testator’s dispositive scheme? Might be incorporated under doctrine of facts of independent significance.
i. Facts of Independent Significance has less stringent requirements that incorporation by reference
ii. Doctrine permits a court to give effect to events which would change the disposition of the testator’s estate after execution of the testator’s will – so long as those events have significance independently – that is, for a reason other than changing the testator’s dispositive scheme.
1. Example: if testator’s will says “X to all my children,” and at the time of execution, testator only had two children. But before death, testator has another child, we would still give effect to the will, despite the addition of a third child. The birth of the third child has independent significance, or significance outside the fact that it changes the testator’s disposition.
2. Example: if testator’s will said “stock to those listed on the stock envelope at the time of my death,” a court would likely not apply the doctrine of facts of independent significance because the only significance of the names on the envelope would be the testator’s dispositive scheme – the names on the envelope do not have independent significance.
iii. UPC §2-512: (Page 271) A will may dispose of property by reference to acts and events that have significance apart from their effect upon the disposition made by the will, whether they occur before or after the execution of the will or before or after the testator’s death. The execution or revocation of another individual’s will is such an event.
iv. Note: Facts of independent significance may be either: (1) recipient-oriented: facts that determine the beneficiaries of the will (i.e. “my oldest child [living at the time of my death]” or (2) property-oriented: fact that determine the property that a specified beneficiary will receive (i.e. “the car I own when I die to X.”)
v. In re Tipler’s Will – Consideration of extrinsic evidence is appropriate under the doctrine of independent significance. Husband’s will had significance aside from the disposition of his wife’s assets – the disposition of his own assets. Rejects argument that the codicil does not contain all “material provisions” in testator’s own handwriting because the named beneficiaries are found only in the husband’s will.
3. Was the document numbered, attached, and initialed? All pages may be integrated.
a. Doctrine of integration permits, for example, the signature on the last page of a will to be imputed to the rest of the document. The pages are treated as “integrated.” If something is not part of the will, we would be hesitant to afford testamentary intent to this extrinsic document.
b. Very few wills will consist of only one page. When one page has been signed and witnessed, how can we be sure that the other pages attached to the signed page constitute part of the same will? Attorney should make sure pages are numbered, initialed, and securely affixed; if this has been done, courts generally treat the pages as a single, integrated will.
c. But sadly, the world is not perfect… what happens if the pages are not clearly integrated? One possibility: arguments for incorporation by reference!!