1. Execution of Wills (continued) We’ll begin today’s class with some more discussion of doctrines for curing defects in the execution of wills. We’ll also discuss notarization of wills and the use of holographic wills 1

2. Curing Defects States willing to cure defects 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 2

3. Substantial Compliance and Harmless Error Types of Curative Doctrines 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. Substantial Compliance Harmless Error Rule (UPC §2-503) 3

4. 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 4  The wife contested the will because she did not receive as much as she wanted

5. Self-proving wills Self- Proving Wills 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 One-Step Process Two-Step Process 5

6. In re Will of Ranney In re Will of Ranney, p.253 6  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

7. 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) 7

8. Signatures by witnesses Witnesses can simply sign the will Recall the Godfrey will on page 236Godfrey will 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 8

9. 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 9

10. 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. 10

11. In re Estate of Hall Jim Hall Betty Hall SandraCharlotte First Wife What were the facts in In re Estate of Hall ?, page 259 1984: “Original Will” drafted and executed. 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. June 4, 1997: Jim and Betty sign draft of “Joint Will” and attorney notarizes it without anyone else present. 11

12. 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 12

13. A.Execution of Wills 3. Notarized Wills 13

14. 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 14

15. Difficult to square this case with Ranney. Since this case, NJ has adopted harmless error In re Will of Ferree In re Will of Ferree, p..267 15

16. A.Execution of Wills 4. Holographic Wills 16

17. 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. Functions of Formalities “Does this remark indicate finality of intention to transfer ?” [i.e., finality in the absence of writing a new will] 17

18. Indiana’s holographic statute 18

19. MT WY ID WA OR NV UT CA AZ ND SD NE CO NM TX OK KS AR LA MO IA MN WI IL IN KY TN MS AL GA FL SC NC VA WV OH MI NY PA MD DE NJ CT RI MA ME VT NH AK HI Holographic Will States (2008) 19

20. Kimmel’s Estate (1) 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.... Kimmel’s Estate, p. 269 20

21. 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 Kimmel’s Estate, (cont.) 21

22. Conditional wills, p.272 Conditional devises are present in almost all wills (“to A if A survives me”) Conditional wills should never be used (“This is my will if I die on my trip to the South Pole.”) Fortunately for testators, courts have been lenient with the conditional language in conditional wills, reading them as motives rather than triggering contingencies (perhaps because the leading authority, Eaton v. Brown, is a Supreme Court opinion by Justice Holmes). 22

23. How much must be in the testator’s handwriting? Since holographic wills earn their authenticity because they are written by the testator by hand, a key question is how much of the will must be written by the testator? It is common for people to fill in the blanks on a pre- printed form. If they have it properly witnessed, then it can be probated as a formal will But if they don’t have it properly witnessed (say they have it notarized as in the Ferree case, pages 266-267), can they have it probated as a holographic will? 23

24. What were the facts in Gonzalez?, p. 274 Fermin Gonzalez filled out a preprinted form for his will and showed it to his brother and sister-in-law. The sister-in-law saw Fermin sign the form, but no one signed as a witness. However, the brother and sister-in-law and Fermin’s mother signed another preprinted form onto which he planned to copy his instructions. Did Fermin execute a valid will? It had no signatures by witnesses, but was it valid as a holographic will? The will was contested because he left his estate to three out of his five children 24

25. Estate of Gonzalez 25

26. Maine statutes in Gonzalez [With some exceptions], every will shall be... signed by at least 2 persons each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will. (§ 2-502) A will which does not comply with section 2-502 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator. (§ 2-503) 26

27. Did Fermin write the material provisions? Some states incorporate the preprinted words into the will Other states ignore the preprinted words and consider whether the handwritten words alone make up a will (as in Ferree)Ferree This court includes the preprinted words Note that Fermin’s will reads like a will even without the preprinted words, while Ferree’s does not 27

28. What result in a harmless error, non-holographic state? Would Fermin’s document been saved as a formal will without the witnessing? Perhaps, but as a formal will, Fermin’s document is weaker than Ferree’s. We might ask whether the contestants asked the right question. Instead of asking whether the pre-printed language counted as part of the will, they could have asked whether this really was Fermin’s will or only a draft. What makes it only a draft? The witnesses signed the other form. What makes it a will?will Fermin signed it twice. 28

29. Signature and Handwriting (1) A holographic will must be: written by the testator’s hand, and signed by the testator. Signature In almost all states permitting holographs, the will may be signed at the end, at the beginning, or anywhere else on the face of document. BUT, if not signed at the end, there may be doubt about whether the decedent intended his name to be a signature. Handwriting First generation: Entirely written, signed and dated. Second generation: Material provisions Third generation: Material portions and extrinsic evidence allowed 29

30. The will in Williams v. Towle The will in Williams v. Towle, 66 Cal. Rptr. 3d 34 (App. 2007) 30

31. Signature and Handwriting (2) A holographic will must be: written by the testator’s hand, and signed by the testator. Signature In almost all states permitting holographs, the will may be signed at the end, at the beginning, or anywhere else on the face of document. BUT, if not signed at the end, there may be doubt about whether the decedent intended his name to be a signature. Handwriting First generation: “Entirely written, signed, and dated.” Second generation: “Material provisions.” Third generation: “Material portions” and extrinsic evidence allowed. 31

32. MT WY ID WA OR NV UT CA AZ ND SD NE CO NM TX OK KS AR LA MO IA MN WI IL IN KY TN MS AL GA FL SC NC VA WV OH MI NY PA MD DE NJ CT RI MA ME VT NH AK HI First Generation Second Generation Third Generation Other Handwriting Statutes (2008) 32

33. UPC §2-502(b)-(c) (b) [Holographic Wills.] A will that does not comply with subsection (a) is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting. According to the to §2-502(b), language such as “I give, devise and bequeath to” in a preprinted will form should not disqualify the instrument as a valid holograph if the testator fills in the rest by hand. (c) [Extrinsic Evidence.] Intent that a document constitute the testator’s will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator’s handwriting. 33

34. UPC §2-502(b)-(c) (b) [Holographic Wills.] A will that does not comply with subsection (a) is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting. According to the to §2-502(b), language such as “I give, devise and bequeath to” in a preprinted will form should not disqualify the instrument as a valid holograph if the testator fills in the rest by hand. (c) [Extrinsic Evidence.] Intent that a document constitute the testator’s will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator’s handwriting. The Kuralt case indicates another way in which extrinsic evidence is considered 34

35. In re Estate of Kuralt (1) Charles Kuralt Petie (wife) Shannon Montana PropertyResiduary Estate Child In re Estate of Kuralt, (Why is this case decided by a Montana court when Kuralt lived and died in NY?) 35

36. In re Estate of Kuralt (2) In re Estate of Kuralt, 15 P.3d 931 (Mont. 2000) (slide 2) 1962 1985 1997 K marries Suzanne Baird. Timeline Pat moves into MT log cabin on 20 acre parcel, built for her by K. Adjacent to two additional parcels ~ 90 acres in area. 1968 K meets Pat (Baker) Shannon, long-term romance ensues. Holographic will executed leaving MT property to Pat Formal will executed leaving nothing to Pat K, in hospital, writes letter to Pat, promising to: “have the lawyer visit the hospital to be sure [she] inherit[s] the rest of the place in MT. Sham sale of log cabin parcel to Pat; intention to complete second sham sale of remainder of MT property. 1989 1994 June 18, 1997 July 4, 1997 K dies 36

37. Kuralt Why didn’t the court simply probate the 1989 holographic will? Kuralt wrote a formal will in 1994, which overrode the 1989 holographic will. How did Kuralt try to get around the formal will? He decided to transfer the property to his lover through sham sales. He transferred part of the property in 1997, but became ill before the planned transfer of rest of the property. Was the letter from the hospital a valid holographic codicil to the 1994 will, or was it an expression of a future intent to write a will (page 283)? The district court found it to be a valid holographic, and the supreme court held that the district court did not err in so finding (page 285): 37

38. In re Estate of Kuralt (3 ) In Re Estate of Kuralt In re Estate of Kuralt, 15 P.3d 931 (Mont. 2000) (slide 3) The holographic will at issue in Kuralt 38

39. In re Estate of Kuralt (4) June 18, 1997 Dear Pat — Something is terribly wrong with me and they can’t figure out what. After cat-scans and a variety of cardiograms, they agree it’s not lung cancer or heart trouble or blood clot. So they’re putting me in the hospital today to concentrate on infectious diseases. I am getting worse, barely able to get out of bed, but still have high hopes for recovery … if only I can get a diagnosis! Curiouser and curiouser! I’ll keep you informed. I’ll have the lawyer visit the hospital to be sure you inherit the rest of the place in MT. if it comes to that. I send love to you & [your youngest daughter,] Shannon. Hope things are better there! Love, C. In re Estate of Kuralt, 15 P.3d 931 (Mont. 2000) (slide 4) 39

40. Problem with Kuralt Suppose T dies without a will but with one of the following kinds of evidence indicating his chosen beneficiary at death: T’s letter to his lawyer to draft a will in accord with T’s wishes;letter a videotape of T explaining whom he wants as beneficiary; a typed, unsigned document prepared by T entitled “estate plan”; the credible testimony of five individuals, all of whom say that T wanted to leave his property in Manhattan to his friend A; T’s letter to a beneficiary informing her that he plans to leave her property at his death; or T’s letter to a beneficiary informing her that he plans to have a lawyer draft a will to ensure that she inherits his property at his death. Do we have a will with any of these kinds of evidence? 40

41. Problem with Kuralt Restatement (Third) of Property: Wills and Other Donative Transfers §3.3, cmt. b, Illus. 1 (1999): “G sent a signed letter to his attorney giving directions for the preparation of his will. G died while the will was being prepared. Neither the letter nor the draft prepared by his attorney can be given effect because G never adopted either document as his will.” 41

42. Taylor v. Holt p.236 Steve Godfrey’s Will 42