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Chapter 4

Chapter 4. Wills: Formalities and Forms. Statute of Wills. History (1540) Purposes. Statute of Wills. Four Functions Ritual function Evidentiary function Protective function Channeling function. Common Features of Statutes of Wills. Writing Signature requirement Witness requirement.

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Chapter 4

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  1. Chapter 4 Wills: Formalities and Forms

  2. Statute of Wills • History (1540) • Purposes

  3. Statute of Wills Four Functions • Ritual function • Evidentiary function • Protective function • Channeling function

  4. Common Features of Statutes of Wills • Writing • Signature requirement • Witness requirement

  5. Iowa Statute of Wills 633.279 • In writing • Signed by Testator • Declared by Testator • Request of witnesses by Testator

  6. Iowa Statute of Wills 633.279 • Two witnesses • Sign in each other’s presence • Sign in presence of Testator

  7. Iowa Statute of Wills 633.279 • Must Testator sign in witnesses presence? • Yes • Can Testator acknowledge a previously made signature? • Yes

  8. In writing Signed by Testator Declared by Testator Request of witnesses by Testator Two witnesses Sign in each other’s presence Sign in presence of Testator Summary of Iowa Statute

  9. In re Groffman

  10. The Meaning of “Presence” • Sight • Hearing

  11. The “signature” requirement • Who can sign Testator’s signature? • Where must the signature be? • Foot signing • Material after signature

  12. Who can be a Witness? • Age requirement

  13. Who can be a Witness? • Interested witness statute • Common law • Complete Bar • Some Bar • At time of execution • At time of death

  14. Who can be a Witness? Should there be an interested witness statute?

  15. Estate of Parsons

  16. In re Pavlinko’s Estate

  17. In re Pavlinko’s Estate I, Vasil, leave my estate to Helen, or if she predeceases me, to X. Helen I, Helen, leave my estate to Vasil, or if she predeceases me, to X. Vasil

  18. In re Will of Ranney

  19. Compliance with Statute of Wills • Strict Compliance • Substantial Compliance • UPC 2-503 (pg. 252 of Casebook)

  20. Holographic Wills • What are they? • Are they valid? • Should they be valid?

  21. In re Estate of Johnson • What are the facts of this case? • What does the courts hold? • Is the case defensible as a matter of policy? • Review the statutory language: “material portions” • UPC 2-502c See comments • Page 270, Problem 4

  22. Kimmel’s Estate • What are the facts of this case? • Is the letter a testamentary document? • Is the signature sufficient? • Problem 1 on page 273

  23. Wills Executed Out-of-State • Foreign Wills Statute • Reason for?

  24. Revocation of Wills • Ambulatory nature of wills • Methods of revocation • Subsequent will • Physical act, accompanied by intent to revoke • Revocation by inconsistency

  25. Harrison v. Bird • What are the facts of this case? • What presumption operated in this case? • Suppose T properly executes her will in duplicate. Both copies are given to T. T later physically destroys one copy. Can the remaining copy be probated? • Intent to revoke now at issue • Pg. 279, problems 1 and 2

  26. Thompson v. Royall • What are the facts of this case? • What does the court hold? • Any malpractice? • UPC 2-507 • Problems 3-5 on page 284

  27. In re Estate of Barrie

  28. I, Mr. Barrie, give my entire estate as follows: • 1. My Story County Iowa Farm to Niece • 2. My car to nephew • 3. Residue of my estate to X. • Mr. Barrie • Witness • Witness

  29. I, Mr. Barrie, give my entire estate as follows: • 1. My Iowa Farm to Niece • 2. My car to nephew • 3. Residue of my estate to X. • Mr. Barrie • Witness • Witness • Void

  30. Partial Revocations • Are they valid? • Effect on remainder of the will? • Problem on page 270

  31. Dependent Relative Revocation • To effectuate likely intent • Evidence from similarity of language • Two paradigms

  32. Carter v. First United Methodist Church of Albany • What are the facts of this case? • 1963 will properly executed but found with mark on some of dispositions and through name of an executor. These are marks of cancellation evidencing a revocation • 1978 handwritten and unwitnessed will with distribution somewhat different than 63’ will • Was 1963 will revoked? • Fact 1963 will found with ineffective 78’ will creates presumption that revocation of 63’ will dependent on validity of 78’ will • Problem 2, Page 276

  33. Dependent Relative Revocation I give $5,000 to A I give $10,000 to B

  34. Dependent Relative Revocation 7,500 I give $5,000 to A 8,000 I give $10,000 to B

  35. Estate of Auburn • What are the facts of this case? • Milwaukee will (1955) • Kankakee will (1959) • Revokes by destruction the 59’ will to revise the 55’ will • No revival under Wisconsin law

  36. Revival • English common law rule • Revival jurisdictions: • Intent • Follow English common law • No revival jurisdictions

  37. Revocation by Operation of Law • Divorce • Effect on spouse • Effect on spouse’s relatives • Effect on alternate bequests (if spouse dies before me, then to X) • Effect on nonprobate assets

  38. Component of a Will • Integration • Republication by Codicil • Incorporation by reference • Clark v. Greenhalge (republication by codicil updates date of will so documents executed between will and codicil can be incorporated by reference) • Uniform Testamentary Additions to Trust Act • Johnson v. Johnson • Acts of independent significance

  39. Contracts Affecting Wills • Joint wills, reciprocal wills; mutual wills • Contracts to make a will • Problems 1-2, Page 305 • Contracts not to revoke a will • Shimp v. Huff • Iowa case

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