Execution of Wills Holographic Wills 1

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] 2

Indiana’s holographic statute 3

4

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

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.) 6

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). 7

The tractor fender will (p. 273) 8

Macool 3 A.3d 1258 (N.J. App. Div. 2010) 9

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 ), can they have it probated as a holographic will?Ferree 10

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 11

Estate of Gonzalez 12

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 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) 13

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 14

What result in a harmless error, non-holographic state? Would Fermin’s document have 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. 15

Estate of Southworth

Signature and Handwriting (1) A holographic will must be: Written by the testator’s hand, and Signed by the testator Some states require that the will be dated 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 17

The will in Williams v. Towle The will in Williams v. Towle, 66 Cal. Rptr. 3d 34 (App. 2007) 18

Signature and Handwriting (2) A holographic will must be: Written by the testator’s hand, and Signed by the testator And dated in some states 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. 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 First Generation Second Generation Third Generation Other Handwriting Statutes (2008) 20

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 constituted 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 21

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?) 22

In re Estate of Kuralt (2) In re Estate of Kuralt, 15 P.3d 931 (Mont. 2000) (slide 2) 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 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 June 18, 1997 July 4, 1997 K dies 23

In re Estate of Kuralt (3 ) In Re Estate of Kuralt In re Estate of Kuralt, 15 P.3d 931 (Mont. 2000) The holographic will at issue in Kuralt 24

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) 25

Kuralt Why didn’t the court simply probate the 1989 holographic will (p.281)? 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): 26

Kuralt What aspects of the letter to Shannon suggest that Kuralt did not intend to transfer the Montana property via a will? He enclosed two checks with the letter, which presumably were designed to cover the purchase prices for the two parcels in a sham sale 27

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? 28

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.” 29

In re Will of Ferree In re Will of Ferree, pp pp