Will Formalities, Execution, and Post-Mortem Challenges

Formal Requirements of a Will

• Definition: A will essentially states what to do with a person's property upon their death.

• Evolution: While formal requirements have existed for a long time, the process of formalizing a will has become somewhat easier over time, though core principles remain intact.

• Fundamental Requirements: Historically and currently, a valid will generally must be:

  • In writing.

  • Signed by the testator (the person making the will).

  • Witnessed by a few individuals (typically two in most jurisdictions, rarely three).

Consequences of a Defective Will

• If a will is invalid due to non-compliance with statutory requirements, the testator's property will be distributed according to the system of intestate succession in that jurisdiction.

• This means the state's statutes, rather than the testator's wishes, dictate property distribution.

Challenging a Will

• Motivation: Individuals typically contest a will if invalidating it would benefit them, often resulting in a larger share of the estate or a benefit they wouldn't otherwise receive.

• Skepticism: Courts often approach such challenges with skepticism, acknowledging the self-interest of those contesting.

• Grounds for Challenge: Common concerns raised by challengers (often loved ones with a stake in the estate) include:

  • Fraud in the will's creation or execution.

  • Undue influence, where the testator was coerced.

Purposes of Formalities

These statutory formalities serve several important policy functions:

• Evidentiary Function: The most crucial purpose is to provide reliable evidence of the testator's intent, especially since the testator is deceased and cannot speak for themselves. The document must speak for them.

• Ritualistic Function: The formalities impress upon the testator the seriousness and finality of the act of making a will.

• Protective Function: Formalities safeguard the testator from undue influence, fraud, or imposition (e.g., requiring witnesses).

• Channeling Function: Standardized forms simplify the probate process and make it easier for courts to determine the testator's wishes.

Signature Requirements

• Testator's Signature: The will must be signed by the testator. Alternatively, it can be signed in the testator's name by another individual in the testator's conscious presence and at their direction.

• Form of Signature: An "X" is generally an acceptable mark if intended as a signature. Abbreviations, nicknames, or even typed names (e.g., "father" or a chosen cursive font on a computer) can be accepted if the testator adopted them as their mark or signature.

• Purpose: The signature's primary purpose is to signify finality and genuineness of the will.

  • A completed signature confirms the testator has reviewed and agreed to the document.

  • An incomplete signature can undermine the purpose of finality.

Witnessing Requirements

• General Rule: A few witnesses (usually two or three, depending on jurisdiction) must sign the will.

• Attestation Clause: While not legally required, an attestation clause (a statement signed by witnesses affirming the will's proper execution) creates a rebuttable presumption of due execution, which can aid in probate.

The Uniform Probate Code (UPC) Approach

• The UPC adopts the "least common denominator" for formalities, aiming for flexibility and reducing instances where a will is invalidated solely on technicalities.

• Key UPC Provisions: It requires:

  • The will to be signed by at least two individuals.

  • Each witness to sign within a reasonable time after witnessing either the signing of the will or the testator's acknowledgment of the will or their signature.

  • It does not require witnesses to be present at the same time as each other during signing, nor does it require them to sign in the testator's conscious presence or in each other's presence.

  • Unlike most jurisdictions, the UPC (and a few others) allows for acknowledgment before a notary public as an alternative to traditional witnessing.

Meaning of "Presence"

• Line of Sight Test: The testator must be able to see the witnesses sign if they were to look. Actual viewing is not strictly necessary, but the capability must exist.

• Conscious Presence Test: The testator must be able to understand, through sight, hearing, or general comprehension, that the witnesses are signing the will.

Case Examples for Witnessing

• Groffman: This case demonstrates strict compliance. Despite the court being perfectly satisfied the document represented the testator's intent, the will was invalidated because the signature was placed on the document before witnesses were asked, and witnesses did not sign in each other's or the testator's simultaneous presence. This is often viewed as a "bad decision" that highlights the rigidities overcome by modern approaches like harmless error.

• Stevens: Illustrated difficulties with the "presence" requirement. Witnesses were in the same bank lobby but were held not to be in each other's or the testator's presence due to bulky furniture and mobility issues. This case supports the argument for modernizing formality requirements.

COVID-19 and Remote Will Execution

• Impact of the Pandemic: COVID-19 restrictions accelerated the adoption of remote execution methods, challenging traditional notions of "presence" and "in-person" formalities.

• Ryan (New York): This landmark case involved a will executed remotely via video conference while the testator was in the hospital. The New York court ruled that "line of sight viewing via video conference" satisfied the statutory presence requirement.

  • The execution ceremony was well-coordinated: attorney in their office, social worker in hospital videoing, original will later driven for witness affidavits.

  • The court found the ceremony satisfied both the executive order allowing virtual execution and the underlying statutory requirements, indicating a progressive interpretation of "presence."

• Social Acceptance: The necessity of remote work and interaction during COVID-19 significantly increased the social acceptability and legal recognition of digital and remote options for formal procedures.

Order of Signing

• General Expectation: Traditionally, the testator signs first, followed by the witnesses.

• "Continuous Transaction" Exception: Many jurisdictions now allow for slight deviations in the order if all signings occur as part of a single, continuous transaction.

• Strict Jurisdictions: Some jurisdictions (e.g., in the deathbed scenario discussed where the testator began signing but died before completion, and the sister left before signing) have strictly applied the order requirement, invalidating wills for technical non-compliance.

Content After Signature (Subscription)

• Purpose of Subscription: Requires the testator to sign at the end of the will, ensuring they have seen the entire document and that nothing is added afterward without their consent.

• Post-Signature Additions: If additional content appears after the testator's signature:

  • It might be construed as an amendment if clearly integrated.

  • In some strict jurisdictions, it could lead to the invalidation of the entire will if it creates confusion about the will's finality or content.

  • The presence of such content can undermine the "channeling function" by making it harder to discern the testator's complete intent.

Harmless Error and Ad Hoc Relief

• Historical Context: Historically, courts adhered to strict compliance with wills act formalities, leading to many wills being invalidated over minor technical errors, even when the testator's intent was clear.

• Emergence of Harmless Error: By the 1980s, a movement emerged to provide ad hoc relief from strict compliance. The harmless error rule allows courts to admit a non-complying will to probate if there is clear and convincing evidence that the testator intended the document to be their will.

• Benefits: Harmless error reduces litigation, promotes justice by honoring the testator's actual intent, and provides courts with flexibility.

  • Groffman, for instance, would likely have been probated under a harmless error statute.

• Jurisdictional Variations: Application of harmless error varies; some states (like California) embrace it, while others are more hesitant. It can apply to various defects (e.g., witnessing errors) but may have limitations (e.g., less frequently applied to missing signatures).

• Example (Wally's Pen Hypo):

  • Testator signs in front of Wally and Wendell.

  • Wendell signs.

  • Wally wants his favorite pen and signs two weeks later, in testator's presence but not Wendell's.

  • Under UPC: This is sufficient because Wally signed within "reasonable time" after the testator's acknowledgment, and the UPC doesn't require witnesses to sign in each other's or the testator's presence.

  • In California: Witnesses need not sign in each other's or testator's presence, but generally must sign before the testator dies, unless harmless error applies.

Mistakes in Will Execution

• Species of Mistake: Will cases often involve various forms of mistake during execution.

• In re Pavlinko's Estate (and similar cases like In re Snide): These cases involve mirror image wills, where a husband and wife accidentally sign each other's identical wills.

  • In Pavlinko, the court strictly applied the rules, refusing to probate the document signed by the husband (which was actually his wife's will) because it clearly bore his wife's name throughout. The court was unwilling to ignore the obvious error in the instrument.

  • This highlights the tension between strict compliance and achieving equity/justice, especially when a minor child's interests (represented by a guardian) are involved.

• Risk of Malpractice: Such "simple mistakes" often point to attorney malpractice during the will execution ceremony.

Remedies for Mistakes and Malpractice

• Malpractice Claims: Beneficiaries might pursue a malpractice claim against the drafting attorney.

  • Disadvantages: This is often a less desirable solution due to: cost and delay of litigation; potential for the claim to be worth only a fraction of the intended gift; and the possibility that the attorney lacks sufficient assets for full recovery ("can't get blood from a stone").

• Constructive Trust: A more direct remedy is to impose a constructive trust.

  • This prevents unjust enrichment by compelling the recipient of mistaken property to hold it for the benefit of the intended beneficiary.

  • It aims to do justice with the documents available and honor the testator's intention.

• Reformation of the Will for Mistake: Courts are generally very nervous about reforming or rewriting a will's actual text.

  • The concern is that a will represents the testator's final words, and altering it undermines this principle and can lead to uncertainty.

  • Despite this trepidation, the push for "ad hoc relief" recognized the need for courts to sometimes correct mistakes to align with clear testamentary intent.

Professional Conduct in Will Execution

• Lawyer's Role: Lawyers should ideally oversee the will execution ceremony in a controlled environment (e.g., conference room) with sufficient witnesses (2-3) to ensure all formalities are met. This minimizes the risk of errors and challenges.

• Importance of Correct Execution: While simple, getting execution correct is crucial to avoid later complications, litigation, and ensuring the testator's wishes are honored.