A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage their estate and provides for the transfer of their property at death.
Historically a will has been limited to real property while testament applied only to dispositions of personal property (thus giving rise to the popular title of the document as “Last Will and Testament”), though this distinction is seldom observed today. A will may also create a testamentary trust that is effective only after the death of the testator. Unlike a trust, wills are public and subject to probate rules for validity.
- A. Validity. Is there a valid will? (If a question states that testator created a valid will there is no need to discuss this area.)
1) Intent. Whether the testator intended to create a will. Was there a present intent to create the will? Did the testator intend to dispose of his property upon death?
A mistakenly signed will is not subject to probate because the testator did not intend for it to be his will. Modernly courts may grant release due to mistake to effectuate the testator’s intent.
Conditional wills. A conditional will is one expressly made on the happening of an event. If that condition does not happen the will is denied probate.
Example: If I die on my trip to the Middle East I leave all of my property to my wife. But, if I return safely… The condition has not been met therefore the will is not probated for lack of present intent. Refuted by a declaration of motive. Parol/Extrinsic evidence is not admissible to show a will was intended to be conditional due to the potential of fraud. All conditional wills must be in writing. A codicil can republish a conditional will.
2) Capacity. Did the testator have the requisite capacity to create a will? If the will is found to be invalid, it will automatically cause the property to be distributed through intestate succession.
- Infancy. Must be 18-years-old or over to make a will. An emancipated minor may qualify. A 54-year-old with the mental capacity of 12 may write a will if they have the mental capacity to know what they are doing.
- Mental capacity. Does the testator know what they are doing? Dying, 80-90-year old may call into question whether one has mental capacity to write a will. Burden of proof that the testator was delusional at the time they created the will has the burden to prove the testator did not have the requisite mental capacity. But for the delusion the disposition would not have been made. There must be a causal link between the delusion and the improper will.
- Insane delusion. Did the testator have a disease or perverted mind?
Example: Testator wrongly believed his wife was having an affair, Alzheimer’s disease, etc.
- Fraud. A misrepresentation of material fact made knowingly with the intent to induce reliance causing justifiable reliance to ones damage.
The testator must have been willfully deceived by a beneficiary as to the character or content of the instrument. The affect will only invalidate the beneficiary’s interest unless the entire will is affected by the fraud. If the entire will is found to be invalid due to fraud the property must be distributed by intestate succession.
- Fraud in the execution. The testator tricked into signing a document that they did not know was their will. Fails for lack of intent.
- Fraud in the inducement. The testator has the intent to make the will, but is induced to make a particular gift.
Example: Father has two children. One continually visits the father making lies about the other child causing the father to leave the other child out of the will or less than they would have received without the inducement.
Innocent misrepresentation by a third party is not actionable.
- Undue influence. Influence so great that it destroys the free agency of the testator. The testator must be susceptible to undue influence and the person committing the undue influence has done so for unnatural gain. Consider how long the relationship lasted, a long period of time, a short period. Was the will done in secret? However, consider that all wills are the product of influence.
Example: Elderly people marrying younger people. However, age alone isn’t enough proof, need to include other evidence as well.
Burden is on the challenger to show there was an undue influence. The burden shifts where the challenger can show a fiduciary relationship existed between the testator and the beneficiary.
If the entire will was affected by the undue influence the entire will would fail and be subject to intestate succession. If only portions of the will were affected then that portion would fall to the residue or pass intestate succession.
No contest clause. If the will is challenged the challenger may lose their rights under the will.
Some jurisdictions: A party that has a reasonable belief the will was forged, there was invalid transfer, petition to remove a trustee to get around the no contest clause, the court will avoid the no contest provision by classifying the action as a suit to interpret the will, thereby not triggering the no contest clause.
Any interested party may challenge the will if it benefits the person that drafts it, gave directions and inserted the no contest clause, or an interested witness.
- Mistake and ambiguity.
- Mistake in the execution. Mistake in intent or content where testator mistakenly signs the wrong will. The will fails for lack of intent.
- Mistake in the inducement. As a general rule there is no relief for mistake in the inducement unless fraud exists.
Example: X leaves their entire estate to A and B, son and daughter. X gets a letter from the military that her son has been killed in Afghanistan. She writes the following will: “Believing son to be dead I leave 50% of sons share to brother and the other half to daughter. The mistake appears on the face of the will. It turns out that after testator’s death, son never died. The son will attack the will under mistake of the inducement. The general rule is absent fraud, son has no action. However, the court will grant relief only where both the mistake and the alternative disposition appear on the will. Here, it was clear the testator’s intent and why testator was induced. If the mistake does not appear on the face of the will, then the son becomes an omitted issue/heir that was unintentionally left out of a will. By operation of law they may claim up to their intestate share.
When it comes to mistakes a court will not rewrite a will, but they may carry out the testator’s intention.
The entire will may be invalid, or the court may sever the provision due the mistake as long as it does not violate the testator’s intent.
- Ambiguity is where the will is subject to multiple interpretations. Here, the court will allow parol evidence to determine the intent of the testator. There is no distinction between patent and latent ambiguity. Some jurisdictions will not allow extrinsic evidence to interpret the meaning of a will. Meaning, if the words are not ambiguous, there will be no parol evidence offered.
Example A leaves Blackacre to X, and there are two distinct Blackacres.
3) Formalities. What are the formalities required in particular types of wills?
Rationale: Ritual and evidentiary nature and protection of the statute of wills. Courts worry about fraud because when it comes to money it brings out the worst of people. Dating a will is not required unless material.
- A formal will. A typed will.
- The will must be in writing.
- A document prepared on a statute of wills form.
- Signed by the testator at the end of the will. Some jurisdictions don’t require the signature to be at the end. A nickname signature is OK. Initials are OK as well. Signed by the testator or by some other person in the testator’s presence and direction.
Provisions added later, under the signature fail due to lack of execution. The courts will sever and allows the portions above the signature to go to probate.
The signing must occur in the presence of two witnesses.
- Two competent witnesses must sign the will being present at the same time, and witness either the signing of the will, or the testator’s acknowledgement of their signature on the will and understand what they sign is the testator’s will. Some jurisdictions don’t require the witnesses to sign the will in the presence of each other, or in the presence of the testator.
- The witnesses must be qualified. Does the witness take under the will? If they do, they become an interested witness.
Interested witness rule. At common law if one of the witnesses are interested the will automatically fail and the property is distributed under intestate succession. Modernly some states follow the purging statutes that say any person who is competent can be a witness to a will. However, if a person takes under a will and is also a witness it raises a rebuttable presumption that the witness procured their gift by fraud, duress, menace, or undue influence. If the presumption is rebutted they take the gift under the will. If the presumption is not rebutted the family member can only take there share under intestate succession. A friend or housekeeper that cannot defeat the rebuttable presumption will take nothing under intestate succession.
- A holographic will. A handwritten will.
A handwritten letter, or note amending a formal will is a holographic codicil.
- Signed. Anywhere is sufficient.
- In writing.
- No witnesses are required.
- Only need a date if it is material to the will. What makes a date material? The testator having more than one will. The last will prevails.
If there are two or more holographic wills and there are no dates to determine which is the last will. The holographic wills would be invalid.
If a will was created in New York, and the testator later moved to California and the will, if created in California would not have been valid, it would still be valid so long as the will was executed properly under New York law.
- A contract to make a will. Involves contract, remedies and wills law.
Example: X says to A, “if you give me Blackacre, I will give you Greenacre and 10,00 dollars upon my death.” A relies on X’s statement they enter into a contract. There is offer, acceptance and consideration. Upon X’s death, the executor will not turn the property over to A. Here, there is an unjust enrichment to the estate. A brings an action against X’s estate under contract to make a will and breach thereof.
If the wills contract meets general rules of contract. It will be a valid will/provision in writing. If there was no writing, estoppel would apply based on the belief that the oral agreement would be binding to both parties where A relied on the agreement to his detriment. Here, A would get specific performance on the land and a constructive trust for the money to prevent unjust enrichment.
Example: H and W execute mutual wills stating all my property goes to my surviving spouse, if W does not survive me, then to children of H and F, former wife. While signing the will in the presence of W’s siblings H and W orally promise never to revoke their will. H dies in reliance that W will not revoke the will. W revokes the will giving the property to W’s children. What rights do H and F’s children have? The promise was oral and violates the statute of frauds because wills contracts are required to be in writing. The courts will use partial performance, estoppel theory, meaning the successors under W’s new will would be stopped from asserting the statute of frauds under the theory of unjust enrichment. Courts could also use constructive trust in favor of the interest designated in the original will and enforce the original beneficiary’s interest despite the absence of a writing.
- Joint and mutual wills. Revocable at any time.
- Joint. Two or more persons executing the same instrument intended to serve as the will for both.
- Mutual/reciprocal wills are executed by two or more testator’s that contain substantially similar provisions.
Example: H makes a will leaving everything to W and if W does not survive W, one half to W’s heirs and one half to H’s heirs. W makes a will leaving everything to H if they survive W, and if H does not survive W, one half to H’s heirs and one half to W’s heirs.
- B. If there is a valid will what does it consist of? (If there is only one piece of paper regarding the will, none of the following doctrines apply as they all refer to documents outside of the four corners of the will.) Is the will more than one piece of paper? Is there a codicil that amends the will? Has the will referred to something outside of the will to be incorporated into the will? (Incorporation by reference.) Does the will refer to an act or event to fill in the blank spaces in the will. (Doctrine of independent significance.)
- Doctrine of integration. Is there more than one piece of paper?
- Codicil. An amendment to a will that can stand on its own.
- Incorporation by reference. Allows a will to refer to a document outside of a will and incorporate it as part of the will.
- Doctrine of independent significance. A will that refers to an act or event outside of the will to name gifts or beneficiaries as long as they have significance outside of the will, independent of the will and non-testamentary motive.
- Pour-over trust. (Trust crossover.)
- C. Revocation.
- Subsequent testamentary instrument. Testator writes a will and later writes a new subsequent instrument or codicil.
- Express revocation is made through a clause in the new will, “I hereby revoke my prior will.”
- Revocation by implication The new instrument is inconsistent.
- Total inconsistency. If the new will doesn’t have a revocation clause, courts will look at the both wills. If the new will is totally different then the original will the new will goes to probate.
- Partial inconsistency. Argue to save the will to protect the testator’s intent, but remove the inconsistencies.
Example: Will 1, X leaves property to A and residual to church. Will 2 X leaves property to A and residual to charity. The new will covers up only the inconsistency and the residual would go to the estate for lack of determining the testator’s intent.
- Revocation by physical act. Tearing up, burning the will, writing void on it. Testator must revoke simultaneously with intent. Presumption: If a will is found mutilated among the testator’s property after death, its presumed that testator destroyed the will.
If the testator destroys the will thinking it is invalid. There is no revocation for lack of intent.
Revocation by a third person requires presence of the testator at their direction to be valid.
Example: “Secretary I want you to destroy my will in my presence.”
Example: Testator phones lawyer and tells lawyer to rip up his will. If the will is not destroyed in the testator’s presence the destruction has no legal affect.
Revocation of a codicil does not revoke the will only the codicil portion becomes invalid.
How much destruction is required? To a material portion of a will.
Writing in the margin will not revoke a will.
If a will has been lost or destroyed and there is no showing of an intent of the testator to destroy it, the intent of the testator can be shown by a preponderance of the evidence. Therefore a copy of a will can be introduced as evidence of the testator’s intent.
- Revocation by operation of law.
- Omitted spouse. If a person marries after executing a will and the spouse survives the testator and is not intentionally left out of the will, they may take their intestate share. However, the spouse will receive nothing if testator expressly intended to leave the spouse out of their will and in the will, or where the spouse made a valid agreement to waive their share of the testator’s estate, in writing.
- Omitted heir/issue. Applies to children left out of a will.
- Was the omitted child born after the making of the will? The law is the same as for the omitted spouse. If they were unintentionally left out of the will then the child will receive their intestate share.
- Was the child born before the making of the will? If they were left out of the will then the presumption is the testator intended to leave the child out of the will unless there was a mistaken belief the child was dead or unaware of the child’s birth.
Applies to children not grandchildren.
- Dependent relative revocation. An equitable doctrine designed to effectuate the testator’s intent where a testator makes a will, revokes it and then makes a new will that fails for lack of formality, lack of capacity, inducement, etc. The property would then pass intestate or to the residue. Here, it reinstates the original will, as it had not been revoked but only if it was to effectuate the testator’s intent. Usually, the testator would not revoke a will if they had not believed it was valid.
- Revival. Here, a testator writes multiple wills. Will number one is revoked and subsequently will number two is revoked. Did testator intend to revive the first will? If there is a declaration the testator intended to revive will number one it will go to probate and extrinsic evidence can be introduced to determine the testator’s intent. However, if testator wrote will one and revokes, will two and revokes and will three and revokes then the courts will not know which will was intended to be revived. The property will go through intestate succession.
A revoked will is not revived unless republished by codicil, or incorporation by reference.
- D. Distribution under the will.
- Distribution by instrument. Who gets what under the will?
- Distribution by assets. Who gets Blackacre? Who gets the stocks?
- Distribute by party. A dies leaving five children. What are their rights?
Issues: Highly tested on the bar.
- Lapse. The testator leave to the devisee (the person taking under the will) dies prior to the testator.
Example: T leaves property to blood relative D. D dies prior to the testator. The gift lapses because a dead person cannot take an interest in property.
Example: T leaves property to D, but if D dies to her heirs. This prevents the gift from lapsing.
- Anti-lapse. If D has a lineal descendant (child, grandchild), they can step in the shoes of D and take the same interest D had had while alive. Lineal descendants don’t include brothers and sisters.
- Order of payments. Payments of debts, funeral expenses, taxes, expenses of administration, family advances are all provided for before the estate is distributed to the interested beneficiary.
- Classification of gifts.
- Ademption by extinction. If a gift is not in the estate at the time the testator dies, it is adeemed, or revoked. Only applies to specific gifts.
Example: X gives Jaguar to A, but at the time of death X doesn’t own a Jaguar because he’s killed in it. The argument is that the Jaguar no longer exists and the insurance money proceeds covering it would go to the residual of the estate. For A to get the property they would argue an intervivos change of form when the Jaguar was destroyed it became insurance money. It’s simply a change in form, not substance.
Example: X leave home in Beverly Hills to A. But, before X dies they sold the home and purchased stocks. If the assets can be traced then A would argue the stocks belong to them. The residual beneficiary will argue the gift is an adeemed revoked and falls to the residue.
- Survivor rights.
Increased in property value. Stock splits that take place after the execution of a will is a general gift and there is no gain to the beneficiary. Modernly the beneficiary gets the split in the stock.
Stock dividends increases during the life of the testator are denied to the beneficiary and goes to the residuary beneficiary.
Slayer statute. A beneficiary that murders the testator does not receive anything from testator’s will under public policy.
- E. Renunciation. Whether the beneficiary renounces their right under a will.
Example: Where the beneficiary is left Blackacre under a will encumbered with a large mortgage, taxes or other debts. Rarely tested.
- F. Intestate succession. Heirs take under intestate succession. Beneficiaries take under a wil. When is property distributed under intestate succession?
- Where the decedent leaves no will.
- Where the will is denied probate for lack of validity.
- Example: Lack of capacity, revocation, etc.
Who takes under intestate succession?
- Issue. Children, grandchildren and adopted children.
- If no issue to parents.
- If no parents to brothers and sisters.
- IS not provide for friends or charities.
- If no heirs the property escheats to the state.
- Per stirpes.
X leaves estate to D, D dies having children. D’s children take the property.
- Per capita means equal degree of kinship.
Example: X gives property to A, B and C. The property is distribute equally.
- G. Ancillary rules.
- Simultaneous death. If the testator and beneficiary die at the same time some states presume the testator survived the beneficiary.
Example: A leaves property to B and die simultaneously in an airplane crash, the presumption is A survived B. Therefore, B’s gift lapses absent an alternative beneficiary.
- Adoption. Many states recognize adopted children for purposes of intestate succession the same as a natural child. Adopted children in some states may inherit from both adopted and natural parents.
- Illegitimacy/step children. All states recognize illegitimates as heirs to their mother. Some do not recognize illegitimate as heirs to their father unless acknowledged by him. If there is a relationship between the father and illegitimate there is a strong argument for inheritance.
- Advancements. A loan during the lifetime of a testator during their life is setoff when the testator dies in intestate succession. If there is a valid will its called satisfaction by intervivos gift and is an irrevocable gift.