Execution of wills

1. Execution of wills • Courts can be very persnickety about the formalities associated with the execution of wills • They seem to have forgotten that formalities are supposed to be means to ends, not ends in and of themselves. • One might expect courts to say that complete adherence to formalities provides a “safe harbor” for the testator, but the will can also be probated if the will’s proponents prove its validity by clear and convincing evidence • But many courts won’t even go beyond the will itself to see if it’s clear that the will reflects the testator’s intent and was not compromised by lack of testamentary capacity, undue influence, fraud or duress.

2. Execution of wills • The Baron and Lindgren readings on pages 224 and 225 nicely illustrate the oddity of the law’s strictness with wills by contrasting the law’s greater flexibility with contracts. • To make a contract, you don’t need witnesses, and you don’t need a writing (and consider witness testimony in criminal cases) • Can we explain the difference in terms of the testator’s unavailability when the will is interpreted? • We’ll see with advance directives for medical care that courts are not as strict about formalities—even in states that require clear and convincing evidence of the patient’s wishes before discontinuing treatment, a written document is not required. • And more is at stake in those cases—whether the patient will live or die.

3. Functions of formalities, pages 224-225 “Does this remark indicate finality of intention to transfer ?” [i.e., finality in the absence of writing a new will] • Ritual Function • The performance of some ceremonial act for the purpose of impressing the transferor with the significance of his statements. • Evidentiary Function • Supply satisfactory evidence to the court, especially when recollections of oral testimony can be unreliable or willfully distorted • Protective Function • Prophylactic purpose of safeguarding the testator (a purpose that arose when wills were executed when death was imminent) • Channeling Function • Standardization of form simplifies administration.

4. Comparison of statutory formalities Statute of Frauds (Land) (1677) Uniform Probate Code (1990, rev. 2008) Uniform Probate Code (1900) Wills Act (1837) Writing Writing Writing Writing Writing Writing Writing Writing Signature Signature Subscription Subscription Signature Signature Signature Signature Attestation & subscription by 3 witnesses Attestation & subscription by 3 witnesses Attestation & subscription by 2 witnesses Attestation & subscription by 2 witnesses Attestation & signature by 2 witnesses Attestation & signature by 2 witnesses Attestation & signature by 2 witnesses OR notarization

5. UPC § 2-502(a) UPC § 2-502(a) (1990, rev. 2008) Except as otherwise provided…, a will must be: (1) in writing; (2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction; and (3) either: (A) signed by at least two individuals, each of whom signed within a reasonable time after the individual witnessed either the signing of the will as described in paragraph (2) or the testator’s acknowledgment of that signature or acknowledgment of the will; or (B) acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments.

6. Will execution in Indiana • Ind. Code § 29-1-5-2 [writing required] • (a) All wills except nuncupative wills shall be executed in writing. • Ind. Code § 29-1-5-3 [signature and witnessing required] • (a) . . . A will, other than a nuncupative will, must be executed by the signature of the testator and of at least two (2) witnesses . . . • (b) A will may be attested as follows: • (1) The testator, in the presence of two (2) or more attesting witnesses, shall signify to the witnesses that the instrument is the testator's will and either: • (A) sign the will;(B) acknowledge the testator's signature already made; or(C) at the testator's direction and in the testator's presence have someone else sign the testator's name. • (2) The attesting witnesses must sign in the presence of the testator and each other. • An attestation or self-proving clause is not required under this subsection for a valid will.

7. In re Groffman (1) In re Groffman,(1969) 2 All E.R. 108 (High Ct. of Justice, Eng.) (1) Widow Charles Miss Berenson Daughter Son

8. In re Groffman (2) Why was Groffman’s will invalid? 1) Groffman to Mr. Block and Mr. Leigh: “I should like you now to witness my will [will is already signed by Groffman].” 2) Groffman and Mr. Block move from lounge to dining room, and Mr. Block witnesses will. Mr. Leigh “somewhat cumbrous in his movements, was left behind.” 3) Mr. Block returns to lounge. 4) Mr. Leigh goes to the dining room and witnesses will. Groffman failed to make or acknowledge his signature “in the presence of two or more witnesses present at the same time”

9. In re Groffman (2) Would the will have been executed validly if done as below? 1) Groffman to Mr. Block and Mr. Leigh: “Here is my will. As you can see, I’ve already signed it. I should like you now to serve as witnesses.” 2) Groffman and Mr. Block move from lounge to dining room, and Mr. Block witnesses will. Mr. Leigh “somewhat cumbrous in his movements, was left behind.” 3) Mr. Block returns to lounge. 4) Mr. Leigh goes to the dining room and witnesses will. Yes. The witnesses had to be in each other’s presence when the testator signed or acknowledged signing, but they didn’t have to be in each other’s presence when they signed.

10. Would the variation on Groffman have produced a valid will in Indiana? • Ind. Code § 29-1-5-3 • (b) A will may be attested as follows: • (1) The testator, in the presence of two (2) or more attesting witnesses, shall signify to the witnesses that the instrument is the testator's will and either: • (A) sign the will;(B) acknowledge the testator's signature already made; or(C) at the testator's direction and in the testator's presence have someone else sign the testator's name. • (2) The attesting witnesses must sign in the presence of the testator and each other. No. Indiana requires that the witnesses sign in the presence of each other.

11. Stevens v. Casdorph (1) Stevens v. Casdorph,How will estate be distributed under rules of intestacy? Homer’s Sibling Homer’s Sibling Homer’s Sibling ?? ?? ?? Janet Betty Patricia Peggy Patricia Casdorph Paul Casdorph Frank Paul Smith Contestants: “The Stevenses” More than $320,000 $80,000 Under English, Paul and Frank Paul take 1/3 and the Steveneses each take 1/12. Under Modern and UPC, Paul, Frank Paul and the Stevenses each take 1/6. Homer

12. Stevens v. Casdorph (2) Stevens v. Casdorph,508 S.E.2d 610 (W. Va. 1998) (2) 1) Mr. Miller asks Debra Pauley, bank employee and public notary, to help with the execution of his will. 2) Mr. Miller signs the will with Ms. Pauley present. 3) Ms. Pauley takes Mr. Miller’s will to two other bank employees in the same small lobby, to have them sign as witnesses. Mr. Miller remains at Ms. Pauley’s desk. 4) Ms. Waldron and Ms. McGinn sign Mr. Miller’s will as witnesses without having seen Mr. Miller sign the will. Order of Events During Execution

13. Did the execution of Miller’s will satisfy WV law? • the signature shall be made or the will acknowledged by [the testator] 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, but no form of attestation shall be necessary. • W. Va. Code § 41-1-3 (1997), p.230 • Depends how you interpret “presence”

14. UPC § 2-502(a) Would the Groffman or Miller will be valid under the UPC? Except as otherwise provided…, a will must be: (1) in writing; (2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction; and (3) either: (A) signed by at least two individuals, each of whom signed within a reasonable time after the individual witnessed either the signing of the will as described in paragraph (2) or the testator’s acknowledgment of that signature or acknowledgment of the will; or (B) acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments. Yes, for Groffman (3A), but no for Miller—the witnesses need to witness the testator sign or acknowledge, not merely be in the presence of the testator

15. “Presence” in Will Execution Line of Sight Test (IN rule) Conscious Presence Test The testator does not actually have to see the witnesses sign, but must be able to see them were the testator to look. The testator, through sight, hearing, or general consciousness of events, comprehends that the witness is signing.

16. Problems, page 234 • Valid under conscious presence but not under line of sight test • The courts rejected the telephonic witnessing. Witnesses can’t ascertain capacity over the phone or be sure they are talking to the testator or signing the same document. A webcam seems to address these concerns, but probably is not acceptable yet. Ohio code expressly rejects it. • It’s difficult to understand the court’s problem with the execution. This case too illustrates how adhering to the letter of formalities can get in the way of fulfilling their purposes.

17. “Signature” in Will Execution What forms of signature evidence finality, distinguishing a will from a draft or mere notes? The law is generally more flexible with this formality Type of Mark Location of Mark Order of “signing” • Name in full • A cross (X), abbreviation, or nickname • Electronically printed name in full (cursive font)? • Initials and date? • Mark made by someone else at the direction of T • At the end of the document, generally • Subscription: “at the foot or end thereof” (required by a few states) • Somewhere else? • Additions to will made after “signing” may be invalid • Witnesses: • At time of T’s signing or acknowledgment, as part of one continuous transaction • “Within a reasonable time”? • After T’s death?

18. Will execution in Indiana Ind. Code § 29-1-5-3 b) A will may be attested as follows: (1) The testator, in the presence of two (2) or more attesting witnesses, shall signify to the witnesses that the instrument is the testator's will and either: (A) sign the will; (B) acknowledge the testator's signature already made; or (C) at the testator's direction and in the testator's presence have someone else sign the testator's name. (2) The attesting witnesses must sign in the presence of the testator and each other.

19. Taylor v. Holt Taylor v. Holt,134 S.W.3d 830 (Tenn. App. 2003)Steve Godfrey’s Will

20. Delayed attestation • It may be surprising to know that in some states, witnesses may sign after the testator’s death • They still have to observe the testator sign the will or observe the testator acknowledge a previous signing, but they don’t actually have to sign immediately or before the testator’s death. • You can imagine why this makes sense. Let’s say the testator signs a will, the first witness signs, and then the testator drops dead. Surely, it should be okay for the second witness to sign. • When courts have allowed delayed witness signatures, they have acted in conformity with state statutes that didn’t require the witnesses to sign in the presence of the testator or of each other (as required in Indiana and other states)

21. Videotapes • Not yet accepted as valid wills, but admissible to prove that the will was validly executed • Ind. Code § 29-1-5-3.2Subject to the applicable Indiana Rules of Trial Procedure, a videotape may be admissible as evidence of the following:(1) The proper execution of a will.(2) The intentions of a testator.(3) The mental state or capacity of a testator.(4) The authenticity of a will.(5) Matters that are determined by a court to be relevant to the probate of a will.

22. Indiana and interested witnesses (majority approach)(UPC allows for interested witnesses) • Ind. Code § 29-1-5-2(c)If [a witness would receive a bequest and the witness’ attestation and signature is necessary] such will shall be void only as to him and persons claiming under him . . . ; but if he would have been entitled to a distributive share of the testator's estate except for such will, then [the witness is entitled to that share] not exceeding the value of such interest passed to him by such will.

23. Indiana andinterested witnesses • Ind. Code § 29-1-5-2(d)No attesting witness is interested unless the will gives to him some personal and beneficial interest. The fact that a person is named in the will as executor, trustee, or guardian, or as counsel for the estate, personal representative, trustee or guardian does not make him an interested person

24. Executing andsafeguarding wills • The notes on pages 242-246 provide very good practical advice about executing and safeguarding your clients’ wills • As the notes indicate, the law of the state where the decedent was domiciled at death governs the disposition of personal property, and the law of the state where real property is located governs the disposition of real property • Reciprocity provisions are typical, but it still is best to execute in a way that will satisfy all states • Also, I’ve linked sample attestation and self-proving clauses to the syllabus on Oncourse

25. Execution of wills—Curing defects • As we’ve seen, courts can be very strict in requiring compliance with the formalities of execution • However, other courts will exhibit some flexibility under the doctrines of substantial compliance and harmless error. • We’ll start our discussion of doctrines that allow for cure with the easy case of switched mutual wills by spouses

26. What were the facts in In re Pavlinko’s Estate, p.246 In re Pavlinko’s Estate 1949 1951 1957 Vasil and Hellen mistakenly signed each other’s will. Both left their estate to their spouse, with her brother as residuary legatee. Hellen Pavlinko died. No will offered for probate. Vasil Pavlinko died. Instrument signed by Vasil but written as Hellen’s will was offered for probate. Brother Hellen Pavlinko Vasil Pavlinko ??

27. In re Pavlinko • If the court didn’t want to rewrite the will that Vasil signed or probate the will that Hellen signed, what else might it have done to carry out Vasil’s wishes? • It might have imposed a constructive trust on Vasil’s heirs in favor of Hellen’s brother. • Did Hellen’s brother have any other recourse? • He might have tried to recover through a tort claim against the lawyer (remember from week two of the course the Simpson case on page 58 about the lawyer’s duty to intended beneficiaries)

28. In re Pavlinko • Problems with relying on malpractice suits • Malpractice liability will fail to cover some mistakes. The lawyer may be dead or uninsured. For unique items of personal property or the family home, damages may be an inadequate remedy. • The cost of collecting a claim against a lawyer, and the litigation delays, means that the claim is only worth a fraction of its face value. It is cheaper for a court to correct the mistake (which a lawyer may admit, if correctable) than to pursue a lawyer, who can throw up all kinds of defenses, forcing a settlement. • For Pavlinko’s heirs to take his property unjustly enriches them. To solve the problem by making the lawyer liable creates a needless loss, which will be paid by the lawyer’s insurer and, ultimately, the public.

29. In re Snide,418 N.E.2d 656 (N.Y. 1981) In re Snide (Pavlinko problem) Rose Harvey Snide Adult Beneficiary Adult Beneficiary Minor Beneficiary Guardian ad Litem

30. Fixing switched wills • Probate the will that the testator meant to sign by curing the defect in the execution. • We know which will the testator intended to execute; overlooking the failure to execute properly carries out the testator’s clear intent. • Probate the will that the testator did sign by reforming the will for mistake (i.e., change the language to fit the will the testator intended to sign). • Allows the court to probate the document that satisfied the execution formalities • The Snide court took this approach

31. Curing defects in execution • States willing to cure defects in execution of a will take one of two approaches. • Did the execution of the will substantially comply with the statutory formalities? • Substantial compliance can be implemented as a matter of common law • Was the failure to comply with statutory formalities harmless error? • Harmless error so far has required statutory implementation. • More effective at vindicating testator’s intent

32. Substantial compliance and harmless error Harmless Error Rule (UPC §2-503) Substantial Compliance The court may deem a defectively executed will as being in accord with statutory formalities if there is clear and convincing evidence that the purposes of those formalities were served. The court may excuse noncompliance if there is clear and convincing evidence that the decedent intended the document to be his will.

33. In re Will of Ranney What were the facts in In re Will of Ranney?, p.253 No attestation clause but two-step affidavit witnesses did not sign the will  affidavit language refers to attestation that NEVER happened • The wife contested the will because she did not receive as much as she wanted

34. Self-proving wills One-Step Process Two-Step Process • Witnesses sign ONCE • Affidavit language is a part of the attestation clause • Notarization of the affidavit • Witnesses sign attestation clause (p.244, number 7) • THEN, witnesses sign a separate affidavit • Notarization of the affidavit

35. In re Will of Ranney In re Will of Ranney, p.253 • Can the signatures on the self-proving affidavit satisfy the requirement that witnesses sign the will? • Yes, says the court. The formalities were not observed, but the will still substantially complied with statutory requirements (bottom page 257) (and this has to be proven by clear and convincing evidence). • Note the court’s requirement that the probate proceed in solemn form (page 258) (the English term for what we generally call formal probate, page 43). • What Ranney lost by his lawyer’s sloppiness was the opportunity to avoid the need for a formal hearing at which the witnesses must testify. Lucky for Ranney that the witnesses were available

36. Signing the self-proving affidavit only in Indiana • If the testator and witnesses sign a self-proving clause that meets the requirements of subsection (c) or (d) at the time the will is executed, no other signatures of the testator and witnesses are required for the will to be validly executed and self-proved. • Ind. Code 29-1-5-3.1(a)

37. Signatures by witnesses • Witnesses can simply sign the will • Recall the Godfrey will on page 236 • Recall from Ind. Code 29-1-5-3(b) that “an attestation or self-proving clause is not required under this subsection for a valid will”.. • Witnesses can sign an attestation clause • Witnesses can sign an attestation clause and a self-proving affidavit • The attestation clause and self-proving affidavit are valuable as evidence of due execution

38. Effect of self-proving affidavit UPC 3-406(1) • If the will is self‑proved, compliance with signature requirements for execution is conclusively presumed and other requirements of execution are presumed subject to rebuttal without the testimony of any witness. . . unless there is proof of fraud or forgery affecting the acknowledgment or affidavit. Ind. Code § 29-1-7-13(c) • If the will is self-proved, compliance with signature requirements for execution and other requirements of execution are presumed subject to rebuttal without the testimony of any witness . . . unless there is proof of fraud or forgery affecting the acknowledgment or verification

39. UPC §2-503:Harmless Error Although a document or writing added upon a document was not executed in compliance with Section 2-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent’s will, (ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (iv) a partial or complete revival of his [or her] formerly revoked will or of a formerly revoked portion of the will.

40. In re Estate of Hall What were the facts in In re Estate of Hall?, page 259 1984: “Original Will” drafted and executed. Betty Hall Jim Hall First Wife 1997: “Joint Will” drafted by attorney for Jim and Betty. June 4, 1997: Jim and Betty discuss draft of “Joint Will”, agree on changes to be made. Sandra Charlotte June 4, 1997: Jim and Betty sign draft of “Joint Will” and attorney notarizes it without anyone else present.

41. Was the draft will properly executed? • No. There were not two witnesses • But Montana had adopted the harmless error provision of the UPC • Was there clear and convincing evidence that Jim intended the draft will to be his will? • Yes. Betty testified that Jim and she expected the joint will to stand as a valid will until their lawyer provided a cleaner, more final form • Indeed, they tore up their original will after signing the draft

42. Execution of Wills3. Notarized Wills

43. UPC §2-502: Notarized Wills • (a)provides that a formal will that is in writing and signed by the testator may be either attested by 2 witnesses or “(3) . . . (B) acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments.” • Of particular value for laypeople who write their own wills without legal advice and are accustomed to having formal documents notarized

44. In re Will of Ferree,pp.266-267 Difficult to square this case with Ranney. Since this case, NJ has adopted harmless error

45. Execution of Wills4.Holographic Wills

46. Functions of Formalities “Does this remark indicate finality of intention to transfer ?” [i.e., finality in the absence of writing a new will] • Ritual Function • The performance of some ceremonial for the purpose of impressing the transferor with the significance of his statements. • Evidentiary Function • Supply satisfactory evidence to the court. • Protective Function • Prophylactic purpose of safeguarding the testator. • Channeling Function • Standardization of form simplifies administration.

47. Indiana’s holographic statute

48. WA ME MT ND VT MN OR NH MA ID WI NY SD RI WY MI CT PA NJ IA NE NV OH DE IN IL UT MD CO WV VA KS MO CA KY NC TN AZ OK AR SC NM GA AL MS TX LA FL AK HI Holographic Will States (2008)

49. Kimmel’s Estate (1) Kimmel’s Estate,p. 269 Johnstown, Dec. 12. The Kimmel Bro. and Famly We are all well as you can espec fore the time of the Year. I received you kind & welcome letter from Geo & Irvin all OK glad you poot your Pork down in Pickle it is the true way to keep meet every piece gets the same, now always poot it down that way & you will not miss it & you will have good pork fore smoking you can keep it from butchern to butchern the hole year round. . . .

50. Kimmel’s Estate,(cont.) Kimmel’s Estate (2) • What part of the letter suggests that he intended it as his will? well I cant say if I will come over yet. I will wright in my next letter it may be to ruff we will see in the next letter if I come I have some very valuable papers I want you to keep fore me so if enny thing hapens all the scock money in the 3 Bank liberty lones Post office stamps and my home on Horner St goes to George Darl & Irvin Kepp this letter lock it up it may help you out. Earl sent after his Christmas Tree & Trimmings I sent them he is in the Post office in Phila working. Will clost your Truly, Father. • As we’ve seen courts are not sticklers about signatures; “Father” is sufficient—it was the way Kimmel typically signed his letters