Trusts & Estates Essentials Power Point Slides Class #8

1. Trusts & Estates EssentialsPower Point Slides Class #8 2-12-19 NATIONAL PLUM PUDDING DAY

2. Trusts & Estates Essentials: Logistics Thursday’s Assignment Posted on the Course Page

3. UNIT TWO: WILLS CHAPTER 3 WILLS: PROTECTING TESTAMENTARY INTENT Undue Influence Problems 3C(1) & 3D(1)

4. Review Problem 3C(1) (Last Names A-B & W) Thrust of Problem: • MM dying in great pain • CC, one of his care nurses is a devout Catholic and talks to MM constantly about religion, once talking him out of suicide when pain is very bad. • Subsequrently, he changes will to leave half his estate to Catholic charity. • CC is witness to will.

5. Review Problem 3C(1) (Last Names A-B & W) Undue influence, by a beneficiary or on a beneficiary’s behalf, consists: 1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; or 2. In taking an unfair advantage of another's weakness of mind; or, 3. In taking a grossly oppressive and unfair advantage of another's necessities or distress.

6. Review Problem 3C(1) (Last Names A-B & W) Difficult Qs Raised by Problem: • Likely CC has influence & that she takes advantage of situation, but is what she does “undue” or “unfair”? • Should sincere “good faith” attempts to push religion on a dying person be UI? • Should talking someone out of suicide be considered evidence of UI?

7. Review Problem 3D(1) (Last Names C-J) Evidence to Support Presumption of UI b/c of Confidential Relationship: • J initially is S’s atty and does early drafts of will. • J receives a “large civic auditorium” under the will. What Evidence Tends to Rebut Presumption?

8. Review Problem 3D(1) (Last Names C-J) Evidence That Tends to Rebut Presumption includes • J protested when S wanted to make her a bfry • Turned over doing final draft to another atty, who drafted the gift to J • J urges S to get to know his Niephlets (only surviving family) • Bulk of estate went to charity. Weaknesses of This Evidence?

9. Two Problems Next Time: Identify Formalities Issues & Try Applying Substantial Compliance • Langbein (cited in Casebook): Don’t need all formalities where circumstances suggest: • Reasonable certainty that T intended the document to be will • Reasonable certainty that there has been no fraud, forgery, alteration, replacement • NJ Test: Proponent of will must show … • “… by clear and convincing evidence… • … that the will substantially complies with the statutory requirements.” [Requires consideration of purposes]

10. Wills Formalities: Purposes (Recap) Will Formalities serve four functions (see casebook @ p.114): • Protective function (ceremony and witnesses help to protect Testator (T) from fraud/duress/undue influence) • Evidentiary function (ceremony and witnesses provide evidence that will is authentic expression of T’s intent) • Ritual (“Cautionary”) function (ceremony impresses on T seriousness of what is happening=”Whoa, Dude” effect) • Channeling function (formalities help T to express intent in forms/language recognizable to legal system)

11. UNIT TWO: WILLS CHAPTER 4 WILLS: FORMALITIES Section 4.1.1: Attested Wills cont’d

12. Formalities for Attested Wills (Recap) • Must be in Writing (true in every state) • Testator’s (T) Signature • Can be (i) by T; OR (ii) in the T's name by some other individual … • Some states (FL not UPC) signature must be at “end” of will

13. Formalities for Attested Wills • Must be in Writing (true in every state) • Testator’s (T) Signature Requirements • Witnesses • Number • Some states require at least 3 • Some states: at least 2 • UPC § 2-502(a)(3)(A) • Fl. Stat. §732.502 (1)(b) • UPC § 2-502(a)(3)(B) & a few states: can replace with notary

14. Formalities for Attested Wills • Must be in Writing (true in every state) • Testator’s (T) Signature Requirements • Witnesses • Number (some states 2+, some states 3+) • Rules re T’s Signature (precise language varies) • Must witness or be in the presence of … • T’s signing or acknowledging the signature or the will

15. Formalities for Attested Wills Rules re T’s Signature (precise language varies) (a) Must witness or be in the presence of … (b) T’s signing or acknowledging the signature or the will • UPC § 2-502(a)(3)(A): Must “witness[] either the signing of the will … or the T's acknowledgment of that signature or acknowledgement of the will” • Fl. Stat. §732.502 (1)(b):”T’s signing or acknowledgement – • That he or she has previously signed the will, or • That another person has subscribed the testator’s name to it – • must be in the presence of“ the witnesses. • UPC

16. Formalities for Attested Wills • Must be in Writing (true in every state) • Testator’s (T) Signature Requirements • Witnesses • Number (some states 2+, some states 3+) • Rules re T’s Signature (precise language varies) • Witnesses’ Signatures Required (rules vary) • UPC§ 2-502(a)(3)(A): Must sign “within a reasonable time after the individual witnessed either the signing … or the T's acknowledgment” • Fl. Stat. §732.502 (1)(b): “[M]ust sign the will in the presence of the testator and in the presence of each other.”

17. Formalities for Attested Wills • UPC§ 2-502(a)(3)(A): Must sign “within a reasonable time after the individual witnessed either the signing … or the T's acknowledgment” • Fl. Stat. §732.502 (1)(b): “[M]ust sign the will in the presence of the testator and in the presence of each other.” • Note that both “reasonable time” and “presence” (here and with regard to the T’s signature) leave room for debate. • (2) Jordan v. Fehr, 902 So. 2d 198: Witnesses NOT in each others’ presence when one was in an adjoining room when the other signed the will. The presence requirement means that the witnesses must be in the “immediate vicinity” • (3) Bain v. Hill, 639 So 2d 178: Upheld a will where witnesses signed the will before the testator did, where all of them sat at the same table and signed in the presence of each other.

18. Formalities for Attested Wills:Estate of Henneghan • Straightforward case applying “strict compliance” in D.C. • No notarization option; 2 witnesses must sign in the presence of T • No witnesses signed here, so will fails • Probably defeats T’s intent • Affidavit of Eugenia R, who was present in the open reception area of the notary’s office and saw Sarah execute her will • No signature at the time, so no good • PLUS seeingT signing across the room not same as knowing T’s intent to make will

19. Formalities for Attested Wills: Problem 4.1 M = Disabled T, Types Out Will & S (niece) Takes Him to Former Jobsite TR = Notary Public, Agrees to Witness S & TR watch while M signs with “X” because of disability TR takes signed will into separate room leaving M & S There D & B agreed to witness will & signed it, TR then returned will to M, who died 3 weeks later

20. Formalities for Attested Wills: Problem 4.1 M = Disabled T, Types Out Will & S (niece) Takes Him to Former Jobsite TR = Notary Public, Agrees to Witness S & TR watch while M signs with “X” because of disability Statute given requires that T sign “in such manner as to make it manifest that the name is intended as a signature.” • Caselaw says X is OK if intended as a signature, which looks to be the case here

21. Formalities for Attested Wills: Problem 4.1 M = Disabled T, Types Out Will & S (niece) Takes Him to Former Jobsite TR = Notary Public, Agrees to Witness S & TR watch while M signs with “X” because of disability TR takes signed will into separate room leaving M & S There D & B agreed to witness will & signed it, TR then returned will to M, who died 3 weeks later Statute given requires that T’s “signature … be made … in the presence of at least two competent witnesses, present at the same time; and such witnesses shall subscribe the will in the presence of the testator, and of each other.”  Will Fails • S & T never signed • D & B weren't there when M signed

22. Formalities for Attested Wills: Problem 4.1 M = Disabled T, Types Out Will & S (niece) Takes Him to Former Jobsite TR = Notary Public, Agrees to Witness S & TR watch while M signs with “X” because of disability What if UPC applies instead of given statute? • Can notarize instead of having witnesses, but TR didn’t notarize will • UPC also requires witnesses see T sign, so B & D no good. • UPC allows witnesses to sign “a reasonable time” after watching signature. Casebook author suggests that it is plausible that S & TR can meet this test by signing even though month has passed & M is dead. Argument might be that signing is pretty fresh in their memories. QUESTIONS?

23. Problem 4.2 = Last Names A-B & W • M’s atty composed a draft of a will for her • Stamped “DRAFT” in red ink on the top of the first page. • Distributive provisions appear on the first three pages. • Fourth page contains an attestation clause followed by lines for two witness signatures. • M reviewed the draft and liked it. • M crossed out the word “DRAFT” in black ink, • Her 2 adult children agreed to serve as attesting witnesses and asked to review the will. • M showed them the title of the document but not the dispositive provisions, • Children signed on signature page. Martina then signed the will while her children watched. • M said, “This is my will and it's important that you respect my final wishes.” • M died survived by the two adult children. • A local homeless shelter is sole beneficiary of M’s will, • M’s children contest.

24. Problem 4.2 = Last Names A-B & W You represent the homeless shelter, the proponent of the will. How would you respond to the following arguments asserted by Martina’s children contesting the will’s validity? Assume UPC § 2-502(a) applies and that the court adheres to the doctrine of strict compliance. Argument 1: “The document signed by M was marked as a draft and, therefore, cannot be treated as a final testamentary instrument.”

25. Problem 4.2 = Last Names A-B & W Argument 1: “The document signed by M was marked as a draft and, therefore, cannot be treated as a final testamentary instrument.” Q of testamentary intent. Lot of evidence here: • Crosses out “draft” • Asked her children to witness • M signed the will • M asked her children to sign • After signing , M said, “This is my will and it’s important that you respect my final wishes.”

26. Problem 4.2 = Last Names A-B & W Argument 2: “The attorney’s cover letter accompanying the will instructed Martina to review but not sign the draft will. The cover letter stated, further, that the will execution ceremony had to take place in the attorney’s office to ensure compliance with ‘proper procedures.’. Martina had an obligation to follow her attorney’s instructions if she wished to use the document and, because she violated the attorney’s instructions, the instrument cannot be probated as a valid will.”

27. Problem 4.2 = Last Names A-B & W Argument 2: Failure to follow counsel’s advice doesn’t invalidatewill if she meets statutory requirements. Argument 3: “Martina refused to allow her children to review the contents of the will, so they were unable to authenticate the document, as is required for proper witness attestation.”

28. Problem 4.2 = Last Names A-B & W Argument 3: No requirement that witnesses review the dispositive provisions. She declared it to be her will so Ws can authenticate it. Argument 4: “The statute requires that attesting witnesses sign ‘within a reasonable time after the individual witnessed either the [testator’s] signing of the will . . . or the testator’s acknowledgement of that signature or acknowledgement of the will.’ The adult children signed the document before Martina signed it, not after, so the instrument was not properly attested.”

29. Problem 4.2 = Last Names A-B & W Argument 4: “The statute requires that attesting witnesses sign ‘within a reasonable time after the individual witnessed either the [testator’s] signing of the will . . . or the testator’s acknowledgement of that signature or acknowledgement of the will.’ The adult children signed the document before Martina signed it, not after, so the instrument was not properly attested.” • She acknowledged the will before they signed. • UPC § 502 Comment m notes that where “the testator and the witnesses sign as part of a single (or continuous) transaction, the exact order of signing is not critical.”

30. Formalities for Attested Wills: Problem 4.3 Asked if Examples Given are Valid Under UPC §2-502(a)(1) and (2) • The words “I leave everything to my friend, Fred,” written on the testator’s bedroom wall in pencil, with the testator’s signature written below in blue marker. [“The writing is on the wall!!”] • In Writing? UPC Comment says “The requirement of a writing does not require that the will be written on sheets of paper, but it does require a medium that allows the markings to be detected.” • Not clear if witnessed. If properly witnessed, should be valid.

31. Formalities for Attested Wills: Problem 4.3 Asked if Examples Given are Valid Under UPC §2-502(a)(1) and (2) (c)A typewritten will prepared by T on a word processing program and saved on T’s hard drive; the text of instrument is written in Times New Roman font while the T’s name appears at the end of the document in cursive font; not printed before the T’s death. • In Writing? Electronic communication considered binding writing for many purposes, but lots of problems here. Difficult to know if version you have is T’s final version or a draft or someone else’s forgery. • Signature: If this is a writing, different font suggests intended to be signature so OK.

32. Formalities for Attested Wills: Problem 4.3 Asked if Examples Given are Valid Under UPC §2-502(a)(1) and (2) (e)A typewritten will printed on thick stationery; the testator signed “Big Daddy” at the end instead of using his name, Harvey Pollitt; the will was also signed by two witnesses. (See T. Williams, Cat on a Hot Tin Roof) • Signature. UPC § 2-502 Comment j provides, “Ideally, the testator ‘signs’ the will by writing out his or her name in full. Signature by mark or cross is sufficient, however. So also is signature by term of relationship (such as ‘Dad,’ ‘Mom,’ or ‘Auntie’), abbreviation, nickname, a pet name, a first name, a last name, initials, or pseudonym, or even by fingerprint or seal. …The crucial requirement is that it must be done with intent of adopting the document as the testator's will.” (so looks OK here)

33. Formalities for Attested Wills: Problem 4.3 Asked if Examples Given are Valid Under UPC §2-502(a)(1) and (2) I’ll add slides with info on (b) (d) & (f)

34. Formalities for Attested Wills: Witness Competency A witness is generally competent if able to observe, remember, and relate the facts occurring at the will execution ceremony. But what if the witness is also a beneficiary? • Most states: interest of interested witness is purged • UPC §2-505(b): The signing of a will by an interested witness does not invalidate the will or any provision of it. • Fl. Stat. §732.504(2): A will or codicil, or any part of either, is not invalid because the will or codicil is signed by an interested witness.

35. Formalities for Attested Wills: Attestation Clause • An attestation clause recites the circumstances surrounding the will’s execution from the witnesses’ perspective. • Its purpose is to memorialize the witnesses’ observation of an authentic and voluntary will execution. • Attestation clauses are customary, but not required. • Establishes a rebuttable presumption of a will’s validity.

36. Formalities for Attested Wills: Self-Proving Affidavits • A self-proving affidavit looks similar to and serves all the purposes of an attestation clause. • Because the affidavit is sworn and notarized, it also provides admissible evidence of due execution without further testimony of attesting witnesses. • It is customary to prepare a self-proving affidavit at the time of execution because wills are often probated many years later.

37. Estate of Griffith • Will was signed by T and two witnesses (as well as the notary public). The will contained a “certificate” and an “affidavit of subscribing witnesses,” both of which were also signed by the two witnesses. • When will was contested, witnesses denied that the knew at the time that document was T’s will. Proponent offered no evidence that witnesses knew the document was a will. • Majority, following existing caselaw, says insufficient if attesting witnesses unaware that document is will. • Dissent notes caselaw saying that testimony of attesting witnesses denying the execution of the will is entitled to little credence and worries that opponents of the will can win by suborning one witness.

38. Estate of Griffith • Authors say morals of story are importance of: • (1) selecting reliable witnesses; • (2) advising the witnesses of their role in the will execution ceremony (helpful to have T explicitly identify document as will); and • (3) writing a memo to the client file summarizing the performance of the will execution.

39. Problem 4.4 First paragraph of the Will: Bottom of the first page of the Will:

40. Second page of the Will:

41. Two-page affidavit attached to will by paper clip: Testator’s signature

42. Proiblem 4.4 (Last Names C-J) Did T satisfy the signature reqmtby signing the affidavit attached to the will thothe will itself lacks a full signature? • Based on: In re Estate of Thomas Grady Chastain, 401 S.W.3d 612 (Tenn. 2012). • Common Problem: The UPC addresses it directly by explicitly treating a signature on the self-proving affidavit as part of the will itself: “A signature affixed to a self-proving affidavit attached to a will is considered a signature affixed to the will, if necessary to prove the will’s due execution.” UPC § 2-504(c).

43. Proiblem 4.4 (Last Names C-J) Did T satisfy the signature reqmtby signing the affidavit attached to the will thothe will itself lacks a full signature? • Some Notes on the Facts: • T (without help from atty) was using a form will which appears to lack an obvious signature line for him. • T’s handwritten name on front of will is different handwriting than T’s signature on affidavit (Not obvious in the casebook) • Tennessee has not adopted UPC on this, so looking for best arguments for each side given Tennessee Statutes provided.

44. Proiblem 4.4 (Last Names C-J) Did T satisfy the signature reqmt by signing the affidavit attached to the will tho the will itself lacks a full signature? • §32-1-104 Manner of execution. The execution of a will, other than a holographic or nuncupative will, must be by the signature of the testator and of at least two (2) witnesses as follows: • (1) The testator shall signify to the attesting witnesses that the instrument is the testator's will and either: (A) The testator sign … • §1-3-105(31) Definitions … “Signature” or “signed” includes a mark, the name being written near the mark and witnessed, or any other symbol or methodology executed or adopted by a party with intention to authenticate a writing or record, regardless of being witnessed.

45. Formalities for Attested Wills 4.1.1.3 Safeguarding the Will: Self-Explanatory and Not Test-Worthy

46. Acts of Independent Significance UPC §2-512: Events of Independent Significance. A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions 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. [Fl. Stat. §732.512(2) is virtually identical]

47. Acts of Independent Significance • A devise may identify its object (beneficiary) or subject (the gift) by reference to future acts, events, or occurrences. • A future act, event, or occurrence that changes the object or subject of a devise is not an unattested change to the will so long as the referenced act event, or occurrence has significance apart from its effect on the will. • Good examples in book: • My car to my caretaker (OK) • Name in enveloipe in drawer (not OK) • Problem 4.5 designed to flesh out doctrine.

48. Acts of Independent Significance: Problem 4.5 • “I leave all monies in my Atlantic Bank savings account to the woman I shall marry.” On the date of the will’s execution, the testator was married to Florence; on the date of the testator’s death, the testator was married to Joan. [Note weirdness of “I shall marry” when already married.] • “I leave all monies in my Atlantic Bank savings account to the woman I shall marry.” On the date of the will’s execution, the testator was unmarried; on the date of the testator’s death, the testator was married to Vicky. • Marriage seen as having independent significance.

49. Acts of Independent Significance: Problem 4.5 c. “I leave the sum of $25,000 to each of my children who graduate from college.” On the date of the will’s execution, the testator’s four young children were enrolled in elementary school; on the date of the testator’s death, three of her children had graduated from college. [Easy YES.] d. “I leave the contents of my safe deposit box at Lakeside National Bank to the person or persons with whom I share my last Thanksgiving dinner.” The testator ate his last Thanksgiving dinner at the counter of a roadside diner and sat next to a stranger. The safe deposit box contains a deed to real property. [Complex]

50. Acts of Independent Significance: Problem 4.5 e. “I leave $100,000 to the residuary beneficiary of my sister’s estate.” The testator’s sister executed her will three years later and left the residue of her estate to charity. [Easy yes; statutory language in UPC & FL references] f. “I leave the residue of my estate to the person whose photograph is stapled to this will at my death.” [Easy NO. No purpose but to keep control of property]