Professor Evans
Wills and Trusts
Spring 2017
Background
Guiding Principle
UPC 102(b)(2) – underlying purposes and policies of this code are to discover and make effective the intent of a decedent in the distribution of his property
Themes
Freedom of disposition
Giving effect to owner’s actual or presumed intent
Limitations on freedom of disposition
Formalities
Historically, inheritance was highly formalized
UPC
2-502 requires minimal formalities
2-503 formalities can be waived for “harmless error”
Ethical Considerations
Choice of Law (UPC 2-506)
Scrivener Attorney as Fiduciary (MRPC 1.7)
Client is properly informed;
Appointment doesn’t violate conflict of interest rules; AND
Appointment is not the result of undue influence
Clauses Limiting Liability (1.8)
Generally included for non-professionals and family members
If included – informed consent is required
Attorney as Beneficiary (1.18)
Drafting attorney should avoid being named beneficiary of an unrelated client
Related party – defined broadly
CA Rule – prohibited unless drafter is a relative
Duty to Produce Will; Safeguarding (1.15)
Safeguard will or other alternatives
Unauthorized Practice of Law
Mistakes can be costly when non-lawyers prepare their own testamentary documents
Execution of a Will
Definition
Unilateral written disposition of property to take effect upon death
Ambulatory
Laws of Wills
Evidentiary, cautionary, protective, channeling
Will Requirements (UPC 2-502)
Must be in writing
Where to sign
Freestanding signature at the end is the best way
PA requires “at the foot end”
UPC 2-502 – no “foot end” requirement
How to sign
Full name on signature line (best practice)
UPC 2-502(a)(2)
Signed by testator
Signed by another in T’s conscious presence and by T’s direction
PA 2502(2)-(3)
Signature by mark
Signature by another
Who can sign
Both PA and UPC allow for someone else to sign
UPC
Whether person signing is “so near at hand that the testator is conscious of where they are and of what they are doing, through any of his senses, and where he can see them if he is so disposed
Always issues of fraud
Publication
Not required – best practices and tradition
Expressly declares testator intent
Signed by testator (OR others in T’s conscious presence and by T’s direction)
2 witnesses (OR notarized, 2-502(a)(3)(B))
UPC 2-502(a)(3)(A) – attested – signed by two or three people other than the testator
Within a “reasonable time” of observing Testator’s act or signing
Some states require “in testator’s presence”
Kirkby Case – witnesses told about will over the phone did not satisfy “in the presence” requirement
UPC 2-502(3)
At least two people sign within a reasonable period of time after witnessing:
The signing of the will; OR
The testator’s acknowledgement of the signature; OR
Testator’s acknowledgement of the will
Estate of Peters Case
PA does not require witness unless:
Testator is unable to sign and makes a mark or has someone else sign on her behalf
2502
protective and evidentiary functions
UPC 2-505
Generally competent individual may act as a witness
Location of witness (2-502(a)(3)(A))
Observe testator sign; OR
Observe testator acknowledge signature; OR
Observe testator acknowledge will
Interested Witnesses
Historically – void entire will
Evolution – purging statutes
Void bequest of interest witnesses
Rebuttable presumption of undue influence
UPC – interested witness
ge or older and of sound mind
Capacity
Testator must:
Understand that she is making a will
Know the extent and character of her property; AND
Must know the natural objects of her bounty
Intent
Decedent intent the document to be a will and to become operative on her death
“this is my last will and testament”
strong presumption (but rebuttable)
can look to extrinsic evidence
lack of fraud or mistake
lack of undue influence
Oral Will (nuncupative will)
Not recognized in PA
If allowed, must be executed while in fear of imminent death
Dispensing of Formalities
Laws evolving
wills might be validated without satisfying formalities – such as witness requirement
Substantial Compliance
Courts will validate a will if testator “came close” to proper execution
Interpret wills in a manner that is not intent defeating
Closes gap in interpreting wills and will substitutes
Harmless Error (UPC 2-503)
Focuses on testator’s intent
Allows a court to go further than substantial compliance as long as evidence shows that the testator intended the document to be a will
Standard – clear and convincing
Generally not allowed for absence of signature
May cover second witness or “mirror will”
Snide Case
Requirements (in most states)
Two-step process of validations
Formalities are met; AND
Testamentary intent
Due execution creates a strong presumption of validity
