Wills
Validity
Valid Will needs:
1. Capacity
2. Intention +
3. Executed with formalities
1. Capacity
- Presumed
- 18yo & mental capacity
- Capacity Test: at time of execution T understood:
1. Nature of act
2. Extent of property +
3. Gifts which they want to give effect
- If no capacity when signed, look at when T gave instxns
- Ex. if dementia on and off, have doctor present when signing and provide note
2. Intention
- Intention Test: T has:
1. General intention to make will +
2. Specific intention to make particular will (knowledge + approval of contents)
- If have capacity, then presume knowledge and approval
- Challenge will and rebut presumption by showing FFFUI (fear or force (ie. duress), fraud, undue influence)
- Duress - force and fear of injury or threat of injury
- UI - more where T is physically/mentally weak - some coercion or pressure that overpowers volition
- No presumption if blind/illiterate or suspicious circums (drafter gets large gift) so need extra step to show
knowledge/approval -- ie. attestation clause
- Gifts to Sol in will: refuse to act if sol gets gift or tell client to seek ILA
3. Formalities
- Valid will must be:
1. Written
2. Signed by T, or at T’s direction w/ acknowledgement (this can be one of the W)
3. Signed before 2 Ws at same time +
4. Each W signs in front of T
- Attestation Clause confirms the formalities were met
- If no Att Clause, then can use W testimony as evidence of validity for Grant
- Special Att Clause for blind/illiterate:
1. will read to them +
2. understood & approved contents +
1
, 3. signed or signed in T’s presence at his direction
- Signature: can be mark, in pencil, full name somewhere in will, ‘your loving mother’, unfinished signature
- Witness: must be capable of understanding signif of W’ing signature
- Illiterate can be W if they understand that T is signing a will
- Blind/mental incap/minor c.n be W
- B/B’s spouse should not W will bc they c.n receive gift
- Documents (like diary) can be incorporated into will IF: [1] exist at time of execution + [2] referred to in
will as existing
Mutual Wills:
- Have same clauses and agreement that neither can revoke w/o other’s consent
- Agreement creates Constructive Trusts for Bs so cannot easily get out of mutual wills
Life Interest:
- Assets held on trust for benefit of X - X is a life tenant
- Right to income at 18yo
Alteration or Amendment
RULE: ∆s are invalid UNLESS:
1. ∆s made BEFORE will execution and
2. evidence to show ∆s executed with will formalities +
3. ∆s must be capable of being read naturally
→ Or after will executed:
4. ∆ with line thru + T & 2Ws initial/sign = Executed Alteration
5. Obliteration with old words illegible = effectively a gift of nothing
Invalid ∆s:
- If you can make out crossed out words then they are still part of will on probate
- Unattested alterations: not signed or initialed so presume ∆s made AFTER execution UNLESS just filling in
blank space, so need new will or codicil
- ∆ made after execution and not an obliteration
- 3P made ∆ w/o T’s knowledge and approval
Ex. ∆s made before Ws and initialed by T and 2 Ws = sufficient - initials not needed but one way to prove ∆ made before
execution, can also have W testimony
Codicil
Document that adds, amends, partially revokes will - to be valid codicil must:
1. Reference existing will
2. Satisfy requirements - intention, capacity, formalities
3. Clause confirming unamended part of will, +
4. Codicil can remedy void gift bc B W’d will
2
, Revocation
RULE: revoke with new will OR change in circumstances OR intentional destruction
Marriage/Divorce
- Marry = automatically entirely revoke existing will UNLESS express stmnt in existing will that T knows
they are marrying specific person named in will + T does not want will revoked / or T can have marriage only
partly revoke with express intention
- Divorce = automatically partly revoke will wrt what relates to ex-spouse re gift or Executor
appointment UNLESS T has express intention to keep valid
- Ex-spouse treated as dead on day of divorce
Deliberate Acts
1. New Wills:
- Execute later will or codicil revokes old will to extent of inconsistencies
- Use Express Revocation Clause in new will to entirely revoke all olds ones
2. Destruction:
- Have Intention to revoke + Burn, tear, shred by T, or by 3P at T direction & in T presence
- T must have capacity to show intention to revoke
- If T not present and destroyed = ineffective, but revoke by T created document to revoke will
- Partial destruction may lead to partial revocation
- Presumptions of Valid Destruction and Revocation:
1. Will found mutilated at T’s death
2. Will was last in T’s possession but cannot be found on death
- Saving a will - use Doctrine of Dependent Relative Revocation:
- T intended revocation to be conditional on future event, but if event did not happen but will
destroyed T may still refer to old destroyed will IF it can be reconstructed from a copy/draft
3
Validity
Valid Will needs:
1. Capacity
2. Intention +
3. Executed with formalities
1. Capacity
- Presumed
- 18yo & mental capacity
- Capacity Test: at time of execution T understood:
1. Nature of act
2. Extent of property +
3. Gifts which they want to give effect
- If no capacity when signed, look at when T gave instxns
- Ex. if dementia on and off, have doctor present when signing and provide note
2. Intention
- Intention Test: T has:
1. General intention to make will +
2. Specific intention to make particular will (knowledge + approval of contents)
- If have capacity, then presume knowledge and approval
- Challenge will and rebut presumption by showing FFFUI (fear or force (ie. duress), fraud, undue influence)
- Duress - force and fear of injury or threat of injury
- UI - more where T is physically/mentally weak - some coercion or pressure that overpowers volition
- No presumption if blind/illiterate or suspicious circums (drafter gets large gift) so need extra step to show
knowledge/approval -- ie. attestation clause
- Gifts to Sol in will: refuse to act if sol gets gift or tell client to seek ILA
3. Formalities
- Valid will must be:
1. Written
2. Signed by T, or at T’s direction w/ acknowledgement (this can be one of the W)
3. Signed before 2 Ws at same time +
4. Each W signs in front of T
- Attestation Clause confirms the formalities were met
- If no Att Clause, then can use W testimony as evidence of validity for Grant
- Special Att Clause for blind/illiterate:
1. will read to them +
2. understood & approved contents +
1
, 3. signed or signed in T’s presence at his direction
- Signature: can be mark, in pencil, full name somewhere in will, ‘your loving mother’, unfinished signature
- Witness: must be capable of understanding signif of W’ing signature
- Illiterate can be W if they understand that T is signing a will
- Blind/mental incap/minor c.n be W
- B/B’s spouse should not W will bc they c.n receive gift
- Documents (like diary) can be incorporated into will IF: [1] exist at time of execution + [2] referred to in
will as existing
Mutual Wills:
- Have same clauses and agreement that neither can revoke w/o other’s consent
- Agreement creates Constructive Trusts for Bs so cannot easily get out of mutual wills
Life Interest:
- Assets held on trust for benefit of X - X is a life tenant
- Right to income at 18yo
Alteration or Amendment
RULE: ∆s are invalid UNLESS:
1. ∆s made BEFORE will execution and
2. evidence to show ∆s executed with will formalities +
3. ∆s must be capable of being read naturally
→ Or after will executed:
4. ∆ with line thru + T & 2Ws initial/sign = Executed Alteration
5. Obliteration with old words illegible = effectively a gift of nothing
Invalid ∆s:
- If you can make out crossed out words then they are still part of will on probate
- Unattested alterations: not signed or initialed so presume ∆s made AFTER execution UNLESS just filling in
blank space, so need new will or codicil
- ∆ made after execution and not an obliteration
- 3P made ∆ w/o T’s knowledge and approval
Ex. ∆s made before Ws and initialed by T and 2 Ws = sufficient - initials not needed but one way to prove ∆ made before
execution, can also have W testimony
Codicil
Document that adds, amends, partially revokes will - to be valid codicil must:
1. Reference existing will
2. Satisfy requirements - intention, capacity, formalities
3. Clause confirming unamended part of will, +
4. Codicil can remedy void gift bc B W’d will
2
, Revocation
RULE: revoke with new will OR change in circumstances OR intentional destruction
Marriage/Divorce
- Marry = automatically entirely revoke existing will UNLESS express stmnt in existing will that T knows
they are marrying specific person named in will + T does not want will revoked / or T can have marriage only
partly revoke with express intention
- Divorce = automatically partly revoke will wrt what relates to ex-spouse re gift or Executor
appointment UNLESS T has express intention to keep valid
- Ex-spouse treated as dead on day of divorce
Deliberate Acts
1. New Wills:
- Execute later will or codicil revokes old will to extent of inconsistencies
- Use Express Revocation Clause in new will to entirely revoke all olds ones
2. Destruction:
- Have Intention to revoke + Burn, tear, shred by T, or by 3P at T direction & in T presence
- T must have capacity to show intention to revoke
- If T not present and destroyed = ineffective, but revoke by T created document to revoke will
- Partial destruction may lead to partial revocation
- Presumptions of Valid Destruction and Revocation:
1. Will found mutilated at T’s death
2. Will was last in T’s possession but cannot be found on death
- Saving a will - use Doctrine of Dependent Relative Revocation:
- T intended revocation to be conditional on future event, but if event did not happen but will
destroyed T may still refer to old destroyed will IF it can be reconstructed from a copy/draft
3
