Villanova University School of Law
· Mental Elements:
o Testamentary intent
§ Document or transaction controls events (normally disposition of property) at the maker’s death, but creates not rights or powers until death
o Testamentary capacity (presumption for capacity)
§ Over 18
§ Of sound mind
· Execution Elements (2-502):
§ Oral wills
§ Electronic wills
§ By testator
§ By someone else in testator’s conscious presence and under testator’s direction
§ Mark will suffice
§ Can be anywhere on document
· Must be at end in PA and any provisions after the signature are invalid
o Signed by two competent witnesses
§ Over 18
§ Do not have to sign within testator’s presence
· Sign within reasonable time after seeing testator sign or seeing testator acknowledge his signature
· Witnesses also do not have to sign within presence of each other
· Witnesses could sign at different times so long as witness saw testator attest to the will/his signature. But will is not valid until two witnesses have signed.
· Notary could be one of the witnesses.
§ Do not need to be disinterested
§ Note: witnesses not required in PA
Challenges to Mental Elements:
· Lack of Testamentary Capacity
o Testator’s knowledge and understanding need not be perfect, but they must be efficient enough under the circumstances (larger and more complex estate, greater the capacity required).
o If testator suffers from mental deficiency at the time the will was executed, the whole will is invalid.
o If the testator fades in and out, but executes the will during a lucid interval, the will is valid
· Insane Delusion
o Testator may have sufficient capacity generally to execute a will, but may be suffering from an insane delusion as to cause a particular provision to fail for lack of capacity
· Undue Influence
o A person who benefitted from the also had a hand in its preparation to such an extent that it can be argued the beneficiary’s will substituted the will of the testator.
o Burden of proof: The burden is on the person bringing the undue influence claim unless/until that person proves there was a confidential relationship between the testator and alleged influence. Then the burden is on the influencer to disprove undue influence.
§ Confidential relationship (if proven by challenger, burden shifts to influencer)
§ Extent of change from what would have occurred in intestacy
§ Undue benefit
§ Testator’s susceptibility
§ Independent advice (i.e. lawyer)
o In factum
§ Fooling testator into signing a will that includes something undisclosed.
o In the inducement
§ Testator relies on a misrepresentation/lie in executing his will.
Challenges to Execution Elements:
· Substantial Compliance
o Equitable argument – frustrating the purpose of the statute
o Got close enough to statutory requirements for a will
o Does not assess testator’s intent
· Harmless Error (2-503)
· The will must show an intent to incorporate the writing into the will
o Republication by Codicil
§ Doesn’t matter whether first document is valid or invalid. Codicil must be valid.
§ Republishes any terms in the first will that are not contradictory.
§ Use when no incorporation by reference statute or in addition to incorporation by reference in some cases.
Interpreting a Will:
· Use extrinsic evidence to resolve ambiguities (patent or latent)
· Reformation/modification (usually used to change what government gets)
o Allows court to insert testator’s intent into the document
o Examples: obvious mistakes, attorney errors, tax benefits
§ Restatement § 12.1:
· A donative document, though unambiguous, may be reformed to conform to the donor’s intention if the following are established by clear and convincing evidence:
· That a mistake of fact or law, whether in expression or inducement, affected specific terms of the document; and
· What the donor’s intention was.
· Direct evidence of intention contradicting the plain meaning of the text as well as other evidence of intention may be considered in determine whether elements (1) and (2) have been established by clear and convincing evidence.