1 00:00:00,080 --> 00:00:04,080 OK, let's let's unpack this. Today we are stepping into a 2 00:00:04,080 --> 00:00:07,600 world that feels incredibly personal, literally dealing with 3 00:00:07,600 --> 00:00:10,600 a person's final wishes. You know, the last things they 4 00:00:10,600 --> 00:00:14,000 ever get to say to the world. But it is governed by a set of 5 00:00:14,000 --> 00:00:18,240 rules that can feel, well, surprisingly cold, technical and 6 00:00:18,240 --> 00:00:21,360 at times, frankly, paranoid. Oh, absolutely paranoid. 7 00:00:21,560 --> 00:00:23,560 Right. So in this deep dive, we are 8 00:00:23,560 --> 00:00:27,000 talking about the creation, the alteration and the termination 9 00:00:27,000 --> 00:00:30,240 of wills. The stakes are incredibly high 10 00:00:30,240 --> 00:00:32,680 here. Unlike intestacy, which we've 11 00:00:32,680 --> 00:00:35,400 touched on before as that sort of statutory fall back, the 12 00:00:35,400 --> 00:00:38,720 government's best guess at where your stuff should go, a will is 13 00:00:38,720 --> 00:00:40,720 different. Yeah, it's the deliberate formal 14 00:00:40,720 --> 00:00:42,400 expression of intent. Exactly. 15 00:00:42,400 --> 00:00:45,080 It is dead hand control. You are letting a dead person 16 00:00:45,080 --> 00:00:48,000 control the living, and because of that, the law is incredibly 17 00:00:48,000 --> 00:00:49,680 particular about how you actually do it. 18 00:00:49,840 --> 00:00:52,160 And if you're listening to this and you're a law student or 19 00:00:52,160 --> 00:00:55,240 maybe you are getting ready for the bar exam, you really need to 20 00:00:55,240 --> 00:00:57,800 switch gears mentally right now. This is one of the most heavily 21 00:00:57,800 --> 00:01:01,040 tested areas on finals and the bar for exactly that reason. 22 00:01:01,600 --> 00:01:04,280 The courts are well, they're unforgiving. 23 00:01:04,440 --> 00:01:05,880 They're just waiting for you to slip up. 24 00:01:05,920 --> 00:01:09,280 They really are. In other areas of law, say 25 00:01:09,280 --> 00:01:12,400 contracts or torts, you might get away with substantial 26 00:01:12,400 --> 00:01:14,840 compliance, like getting close enough to the rule. 27 00:01:15,240 --> 00:01:19,360 But in the traditional law of wills, recision is everything. 28 00:01:19,400 --> 00:01:22,960 You miss a signature by an inch or you stand in the wrong spot 29 00:01:22,960 --> 00:01:25,320 during the witnessing. Or use the wrong color ink. 30 00:01:25,520 --> 00:01:27,440 OK, maybe not the ink color, but close. 31 00:01:27,760 --> 00:01:30,320 If you mess up the formalities, the whole document might get 32 00:01:30,320 --> 00:01:32,960 thrown out. Which brings us to the core 33 00:01:32,960 --> 00:01:35,080 tension we are going to explore today. 34 00:01:35,400 --> 00:01:38,200 It's a battle, really. On one hand you have the 35 00:01:38,200 --> 00:01:41,400 individual's freedom of disposition, their right to give 36 00:01:41,400 --> 00:01:43,760 their property to whoever they want, even if it's an 37 00:01:43,760 --> 00:01:47,280 objectively terrible idea, and on the other hand you have the 38 00:01:47,280 --> 00:01:50,400 legal systems desperate need for reliable evidence. 39 00:01:50,640 --> 00:01:53,840 It's this constant clash between strict compliance with the rules 40 00:01:53,840 --> 00:01:56,000 and the actual intent of the person who died. 41 00:01:56,000 --> 00:01:59,720 That tension drives every single doctrine we are going to discuss 42 00:01:59,720 --> 00:02:02,360 today. So here is our road map for the 43 00:02:02,360 --> 00:02:03,800 analysis. We're going to start with the 44 00:02:03,800 --> 00:02:06,680 mental prerequisites. What is going on inside the 45 00:02:06,680 --> 00:02:09,199 testator's head before they even pick up a pen? 46 00:02:09,400 --> 00:02:10,960 The invisible stuff. Exactly. 47 00:02:11,160 --> 00:02:14,040 Then we will move to the physical formalities, the 48 00:02:14,040 --> 00:02:18,440 writing, the signature, the witnesses, and the very specific 49 00:02:18,440 --> 00:02:21,320 choreography required. After that, we'll look at the 50 00:02:21,320 --> 00:02:24,840 curative doctrines, things like holographic wills and the 51 00:02:24,840 --> 00:02:28,360 harmless error doctrine that try to save a defective will. 52 00:02:28,400 --> 00:02:30,840 And finally, we will talk about how to kill a will. 53 00:02:30,960 --> 00:02:33,200 Revocation. Yep, revocation and whether you 54 00:02:33,200 --> 00:02:35,040 can bring it back to life with revival. 55 00:02:35,800 --> 00:02:39,160 So it sounds like a journey from birth to death and then maybe 56 00:02:39,160 --> 00:02:41,640 resurrection. Let's start at the beginning, 57 00:02:42,280 --> 00:02:44,680 the mind before we even put pen to paper. 58 00:02:44,680 --> 00:02:47,840 What does the law require of the person making the will? 59 00:02:48,080 --> 00:02:51,280 We are talking about testamentary capacity and here 60 00:02:51,280 --> 00:02:53,360 is the first thing you need to note for an exam. 61 00:02:53,440 --> 00:02:54,920 And it actually surprises a lot of people. 62 00:02:55,320 --> 00:02:58,160 The standard is deliberately set as a low threshold. 63 00:02:58,480 --> 00:02:59,920 A low threshold. That's that's interesting. 64 00:02:59,920 --> 00:03:02,360 I mean, I would have assumed that since we are giving away 65 00:03:02,360 --> 00:03:04,640 everything we own, the standard would be super high. 66 00:03:04,640 --> 00:03:06,480 Like you need to be sharp as a tack. 67 00:03:06,680 --> 00:03:08,440 Far from it. The law actually wants to 68 00:03:08,440 --> 00:03:10,720 respect the free disposition of property. 69 00:03:11,240 --> 00:03:14,520 We want people to be able to give away their stuff, so the 70 00:03:14,520 --> 00:03:18,760 capacity required to make a will is significantly lower than the 71 00:03:18,760 --> 00:03:21,760 capacity required to, say, sign a contract. 72 00:03:22,080 --> 00:03:25,600 OK, So what exactly does that low threshold look like in 73 00:03:25,600 --> 00:03:29,200 practice? Well, to have capacity you need 74 00:03:29,200 --> 00:03:33,080 to satisfy 4 distinct elements and you have to satisfy them at 75 00:03:33,080 --> 00:03:35,800 the precise moment of execution. Let's break those four down. 76 00:03:35,800 --> 00:03:38,160 What's #1. First, you must understand the 77 00:03:38,160 --> 00:03:39,800 nature and extent of your property. 78 00:03:40,040 --> 00:03:42,960 Now, be careful here on an exam. This doesn't mean you need to 79 00:03:42,960 --> 00:03:46,000 know the exact dollar value of your stock portfolio down to the 80 00:03:46,000 --> 00:03:48,320 cent. Or the precise legal description 81 00:03:48,320 --> 00:03:50,040 of your land in the county registry. 82 00:03:50,120 --> 00:03:51,320 Right. You just need a general 83 00:03:51,320 --> 00:03:54,640 understanding of what you own. Like I have a house, a car and 84 00:03:54,640 --> 00:03:57,440 some savings rather than, you know, I own the moon. 85 00:03:57,600 --> 00:04:00,040 But hold on a second, you said general understanding. 86 00:04:00,720 --> 00:04:03,000 If I'm an elderly billionaire, let's say I'm sitting on a 87 00:04:03,000 --> 00:04:07,280 massive fortune and I forget about a $50,000 savings account 88 00:04:07,280 --> 00:04:10,480 I opened in 1980. Does that mean I lack capacity? 89 00:04:10,560 --> 00:04:13,600 I mean 50 grand is more money than most people see in a year. 90 00:04:13,600 --> 00:04:16,079 That's a perfect example of where the low threshold saves 91 00:04:16,079 --> 00:04:18,160 you. The courts generally rule that 92 00:04:18,160 --> 00:04:22,720 nature and extent doesn't mean an audit for a billionaire for 93 00:04:22,720 --> 00:04:25,320 getting $50,000 is just a rounding error. 94 00:04:25,320 --> 00:04:28,440 It doesn't prove a degraded mind, it just proves a busy one. 95 00:04:28,560 --> 00:04:31,200 That makes sense. But if a person with only 96 00:04:31,200 --> 00:04:35,280 $50,000 to their name thinks they're a billionaire, that is a 97 00:04:35,280 --> 00:04:38,320 capacity issue. It's about the alignment of your 98 00:04:38,320 --> 00:04:40,680 mental reality with the objective reality. 99 00:04:41,360 --> 00:04:44,000 If you have a delusion about your wealth, that's a problem. 100 00:04:44,240 --> 00:04:46,280 A lapse in memory about a small detail. 101 00:04:46,760 --> 00:04:48,480 Usually fine. OK, that distinction really 102 00:04:48,480 --> 00:04:50,760 helps general awareness of assets. 103 00:04:51,000 --> 00:04:53,320 What's the second element? Second, you must know the 104 00:04:53,320 --> 00:04:57,440 natural objects of your bounty. Natural objects of your bounty? 105 00:04:57,560 --> 00:04:59,520 That is a very fancy legal phrase. 106 00:04:59,760 --> 00:05:01,320 Sound like something out of a pirate movie. 107 00:05:01,520 --> 00:05:04,520 It sounds poetic, doesn't it? It basically just means The Who 108 00:05:04,680 --> 00:05:08,360 you need to know who your close relatives are, your spouse, your 109 00:05:08,360 --> 00:05:11,680 children, your parents. You need to know who would 110 00:05:11,680 --> 00:05:14,800 naturally expect to inherit from you if you didn't have a will. 111 00:05:15,040 --> 00:05:18,440 OK so as an exam trap, does that mean I have to leave them 112 00:05:18,440 --> 00:05:20,880 something? Because I know plenty of people 113 00:05:20,880 --> 00:05:23,040 who know exactly who their kids are and still want to leave 114 00:05:23,040 --> 00:05:24,560 everything to their golden retriever. 115 00:05:24,880 --> 00:05:27,120 No, and that is a crucial distinction to make. 116 00:05:27,280 --> 00:05:30,040 You don't have to leave them a dime, you just have to know they 117 00:05:30,040 --> 00:05:32,120 exist. If you actually think your son 118 00:05:32,120 --> 00:05:34,520 is a stranger or you've forgotten you have a daughter 119 00:05:34,520 --> 00:05:38,040 entirely, that's a capacity issue because your mind isn't 120 00:05:38,040 --> 00:05:39,720 grasping reality. Right. 121 00:05:40,280 --> 00:05:42,840 But if you know who they are, you know that is my son John, 122 00:05:43,080 --> 00:05:45,880 and you simply decide John is a bum and I'm cutting him out, 123 00:05:46,200 --> 00:05:49,480 That is your right. You can be mean, you just can't 124 00:05:49,480 --> 00:05:50,520 be delusional. Got it. 125 00:05:51,080 --> 00:05:53,120 Malice is legal, confusion is not. 126 00:05:54,360 --> 00:05:56,080 So know your stuff, know your family. 127 00:05:56,080 --> 00:05:59,160 What's #3. 3rd, you must understand the nature of the 128 00:05:59,160 --> 00:06:02,640 testamentary act. You have to comprehend that 129 00:06:02,640 --> 00:06:06,840 you're executing a will, that it disposes of your property after 130 00:06:06,840 --> 00:06:10,920 you die, and crucially, that it is revocable until that time. 131 00:06:11,120 --> 00:06:14,000 You have to know this isn't a deed giving the property away 132 00:06:14,000 --> 00:06:15,280 today. Exactly. 133 00:06:15,520 --> 00:06:18,040 Or a contract. You need to know that you are 134 00:06:18,040 --> 00:06:22,240 performing a specific ritual that has legal consequences upon 135 00:06:22,240 --> 00:06:24,000 your death. And the fourth element. 136 00:06:24,000 --> 00:06:26,720 The 4th element is really just the glue that holds the other 137 00:06:26,720 --> 00:06:29,720 three together. You must be able to formulate an 138 00:06:29,720 --> 00:06:32,440 orderly plan of disposition. Meaning. 139 00:06:32,600 --> 00:06:35,440 Meaning you have to be able to hold those first three elements 140 00:06:35,440 --> 00:06:39,000 in your mind long enough to say, I want my house to go to X and 141 00:06:39,000 --> 00:06:42,600 my car to go to Y. It's about cognitive processing 142 00:06:42,600 --> 00:06:44,720 power. Can you connect the what the 143 00:06:44,720 --> 00:06:46,920 property to The Who? The objects of bounty. 144 00:06:46,920 --> 00:06:49,640 So it's a moment in time test that makes me wonder about 145 00:06:49,640 --> 00:06:51,640 people with dementia or mental illness. 146 00:06:51,680 --> 00:06:54,720 If someone has Alzheimer's or suffers from schizophrenia, are 147 00:06:54,720 --> 00:06:57,120 they automatically disqualified from writing a will? 148 00:06:57,280 --> 00:06:59,840 Absolutely not. And this brings us to a very 149 00:06:59,840 --> 00:07:03,600 testable concept, the lucid interval doctrine. 150 00:07:04,320 --> 00:07:07,280 Because capacity is an assessment made at the precise 151 00:07:07,280 --> 00:07:10,680 moment of execution, literally the minutes you were signing the 152 00:07:10,680 --> 00:07:13,040 document. A person who suffers from 153 00:07:13,040 --> 00:07:16,360 chronic mental illness or delusions can still execute a 154 00:07:16,360 --> 00:07:19,160 perfectly valid will. If they do it during a lucid 155 00:07:19,160 --> 00:07:20,200 interval. Exactly. 156 00:07:20,320 --> 00:07:23,440 That's a temporary period where the fog lifts, their mind is 157 00:07:23,440 --> 00:07:26,440 clear, and they meet those 4 criteria we just discussed. 158 00:07:26,640 --> 00:07:28,600 That's fascinating. So you could be completely 159 00:07:28,600 --> 00:07:31,760 confused on Tuesday, have a moment of clarity on Wednesday 160 00:07:31,760 --> 00:07:34,480 afternoon when you sign the will, and be confused again on 161 00:07:34,480 --> 00:07:38,040 Thursday and the will stands. Correct, and generally the 162 00:07:38,040 --> 00:07:42,040 burden of proof to show a lack of capacity rests on the person 163 00:07:42,040 --> 00:07:45,200 contesting the will. The law presumes competence, so 164 00:07:45,200 --> 00:07:47,200 if you want to challenge that will, you have to prove they 165 00:07:47,200 --> 00:07:48,920 didn't have a lucid interval when they sign. 166 00:07:48,960 --> 00:07:52,360 It's a very steep hill to climb. Now, I know there is a trap that 167 00:07:52,360 --> 00:07:54,640 students fall into here regarding capacity is 168 00:07:54,640 --> 00:07:56,840 specifically comparing it to other legal acts. 169 00:07:56,840 --> 00:07:59,840 Let's flag that. Yes, the contract versus will 170 00:07:59,840 --> 00:08:02,360 trap. Do not confuse testamentary 171 00:08:02,360 --> 00:08:04,720 capacity with contractual capacity. 172 00:08:05,320 --> 00:08:08,560 Contractual capacity is a significantly higher standard. 173 00:08:08,720 --> 00:08:13,160 Think about why right to sign a contract to sell your house, for 174 00:08:13,160 --> 00:08:15,280 example. You are entering an arm's length 175 00:08:15,280 --> 00:08:17,200 transaction. You are dealing with someone who 176 00:08:17,200 --> 00:08:18,560 has opposing interests. Right. 177 00:08:18,560 --> 00:08:21,320 You need to understand the value, the market, the terms, 178 00:08:21,520 --> 00:08:23,560 and you need to protect yourself from getting ripped off. 179 00:08:24,120 --> 00:08:25,520 You're impacting your life right now. 180 00:08:25,600 --> 00:08:31,440 So wait, you are saying I might be too mentally declined to sell 181 00:08:31,440 --> 00:08:34,400 my like to sign a contract for the sale because I might get 182 00:08:34,400 --> 00:08:36,960 cheated, but I could still be mentally capable of willing that 183 00:08:36,960 --> 00:08:38,240 house to someone? Exactly. 184 00:08:38,440 --> 00:08:41,880 You might lack the capacity to handle a business transaction 185 00:08:41,880 --> 00:08:45,040 inter vivos during life because that requires high level 186 00:08:45,040 --> 00:08:48,320 cognitive functioning to protect your assets, but simply giving 187 00:08:48,320 --> 00:08:50,600 it away at death? That requires less mental 188 00:08:50,600 --> 00:08:52,120 horsepower. I have a house. 189 00:08:52,120 --> 00:08:54,000 I love my daughter. I want her to have it. 190 00:08:54,040 --> 00:08:57,480 Right, that is a much simpler thought process than I am 191 00:08:57,480 --> 00:09:00,520 selling this house for $400,000 subject to inspection and 192 00:09:00,520 --> 00:09:03,240 financing contingencies. OK, so that's capacity. 193 00:09:03,240 --> 00:09:06,760 The mind is capable, but just being capable isn't enough, 194 00:09:06,800 --> 00:09:09,000 right? I can be capable and write a 195 00:09:09,000 --> 00:09:11,560 letter to my lawyer saying I think I want to leave my boat to 196 00:09:11,560 --> 00:09:13,040 Bob. Is that a will? 197 00:09:13,320 --> 00:09:16,160 No, that brings us to testamentary intent. 198 00:09:16,320 --> 00:09:21,120 Or in Latin and miss tostandi. This is the specific intent that 199 00:09:21,120 --> 00:09:24,680 this specific writing is the final legal instrument. 200 00:09:25,000 --> 00:09:27,560 So drafts don't count. Generally no. 201 00:09:28,240 --> 00:09:32,080 If a document is titled draft or if it says I wish my son would 202 00:09:32,080 --> 00:09:34,360 receive, which we call preparatory language. 203 00:09:34,360 --> 00:09:35,720 Meaning it's just a wish or a hope. 204 00:09:35,920 --> 00:09:38,680 It might not be a will. Because it lacks finality. 205 00:09:38,760 --> 00:09:40,480 Right. The courts look at evidence. 206 00:09:40,880 --> 00:09:43,440 If you can prove the testator intended that draft to be the 207 00:09:43,440 --> 00:09:46,880 final word, it might pass. But usually a draft is just a 208 00:09:46,880 --> 00:09:50,080 draft, and mere notes or instructions for my lawyer are 209 00:09:50,080 --> 00:09:52,640 definitely not wills. And this intent has to exist 210 00:09:52,640 --> 00:09:54,600 when. At the time of execution, you 211 00:09:54,600 --> 00:09:56,880 cannot write a letter to your lawyer and then three years 212 00:09:56,880 --> 00:09:58,840 later, say, you know what? I never got around to signing 213 00:09:58,840 --> 00:10:00,800 the real will, but I really like that letter. 214 00:10:00,960 --> 00:10:03,440 Let's just use that. A lawyer's memo cannot become a 215 00:10:03,440 --> 00:10:05,360 will later just because the client liked it. 216 00:10:05,560 --> 00:10:08,520 No, the intent must be present at the signing. 217 00:10:08,800 --> 00:10:11,240 You have to mean this is it when you put the pen to the paper. 218 00:10:11,240 --> 00:10:14,560 So we have the mine right? We are lucid, we have intent. 219 00:10:14,720 --> 00:10:16,480 Now we have to actually do the thing. 220 00:10:16,800 --> 00:10:20,360 We are moving into section two of our analysis, the formalities 221 00:10:20,360 --> 00:10:23,040 of a tested wills. This is where the checklist come 222 00:10:23,040 --> 00:10:24,640 out. But before we get into the 223 00:10:24,640 --> 00:10:26,880 weeds, why do we make this so hard? 224 00:10:26,880 --> 00:10:29,720 Why all the hoops? We call them the functions of 225 00:10:29,720 --> 00:10:32,280 formalities. Legal scholars usually identify 226 00:10:32,280 --> 00:10:35,160 3 or 4, but let's hit the big ones first. 227 00:10:35,160 --> 00:10:38,520 The evidentiary function. We need reliable evidence of 228 00:10:38,520 --> 00:10:40,800 intent. Because the main witness, the 229 00:10:40,800 --> 00:10:43,760 testator, is dead, we can't ask them what they meant, so the 230 00:10:43,760 --> 00:10:47,120 document has to speak for itself. 2nd is the cautionary or 231 00:10:47,120 --> 00:10:50,040 ritual function. The ritual function that sounds 232 00:10:50,040 --> 00:10:52,920 almost religious. It is in a secular way, the 233 00:10:52,920 --> 00:10:56,080 ceremony of signee gathering witnesses, the formal language. 234 00:10:56,560 --> 00:10:59,880 It impresses upon the testator. Hey, this is serious business. 235 00:11:00,360 --> 00:11:02,640 It prevents casual or unthought out transfers. 236 00:11:02,760 --> 00:11:05,520 It stops you from scribbling away your fortune on a napkin 237 00:11:05,520 --> 00:11:07,320 while you're angry at dinner. Exactly. 238 00:11:07,360 --> 00:11:10,320 It forces a pause and 3rd, the protective function. 239 00:11:10,640 --> 00:11:13,960 It Shields the testator from fraud or undue influence by 240 00:11:13,960 --> 00:11:16,520 having witnesses present. It's hard to hold a gun to 241 00:11:16,520 --> 00:11:19,000 someone's head and force them to sign if there are two 242 00:11:19,000 --> 00:11:20,920 independent witnesses standing there watching. 243 00:11:21,080 --> 00:11:22,920 OK, so let's walk through those hoops. 244 00:11:23,240 --> 00:11:26,360 Most wills are attested wills. What are the four big 245 00:11:26,360 --> 00:11:28,360 requirements you need to spot on an exam? 246 00:11:28,680 --> 00:11:33,640 Under the majority approach, you need 1A writing, 2A signature by 247 00:11:33,640 --> 00:11:38,320 the testator, 3 at Test station by at least 2 witnesses and four 248 00:11:38,600 --> 00:11:41,200 the witnesses must sign. Let's hit the writing first. 249 00:11:41,200 --> 00:11:44,400 Does it have to be on parchment paper or strictly typed? 250 00:11:44,400 --> 00:11:47,080 No. The medium is flexible paper, a 251 00:11:47,080 --> 00:11:49,760 screen, the back of a napkin, as long as it's a permanent record. 252 00:11:50,160 --> 00:11:52,720 I should briefly mention noncupative wills here, oral 253 00:11:52,720 --> 00:11:55,360 wills. Noncupative sounds painful or 254 00:11:55,360 --> 00:11:57,000 like something you need an ointment for. 255 00:11:57,200 --> 00:11:59,800 It's mostly painful for the lawyers trying to enforce them. 256 00:12:00,040 --> 00:12:02,400 They're largely invalid in most states today. 257 00:12:02,680 --> 00:12:05,640 There are rare exceptions for soldiers and sailors in active 258 00:12:05,640 --> 00:12:08,000 service or sometimes during a last sickness. 259 00:12:08,440 --> 00:12:11,640 But for your exams, unless you see a soldier on a battlefield, 260 00:12:12,120 --> 00:12:15,520 assume an oral will is a no go. It needs to be written. 261 00:12:15,680 --> 00:12:20,400 Got it. Next up, the signature I have 262 00:12:20,400 --> 00:12:22,360 terrible handwriting. Does have to be my full legal 263 00:12:22,360 --> 00:12:23,760 name? What if I just scribble? 264 00:12:23,800 --> 00:12:26,360 Not at all. The form is flexible, An ex. 265 00:12:26,360 --> 00:12:29,600 A nickname, your initials. If you intended it to be your 266 00:12:29,600 --> 00:12:32,520 signature, it counts. So if I sign Dad. 267 00:12:32,560 --> 00:12:36,680 Dad works, The boss works. If that's what you go by, love 268 00:12:36,680 --> 00:12:39,280 Mom works. The key is the intent to 269 00:12:39,280 --> 00:12:41,640 authenticate the document. Now where do I sign? 270 00:12:41,640 --> 00:12:43,840 This seems like a detail, but I have a feeling it matters on an 271 00:12:43,840 --> 00:12:45,280 exam. It matters immensely. 272 00:12:45,280 --> 00:12:48,320 We call this subscription. Historically, and in a minority 273 00:12:48,320 --> 00:12:50,920 of states today, the signature must be at the very end of the 274 00:12:50,920 --> 00:12:52,880 document. Subscribe right? 275 00:12:53,240 --> 00:12:54,800 What happens if I sign in the middle? 276 00:12:54,800 --> 00:12:56,600 Say I leave a few lines blank at the bottom. 277 00:12:56,840 --> 00:12:59,400 In a strict subscription jurisdiction, it could 278 00:12:59,400 --> 00:13:03,040 invalidate the whole will, or they might invalidate just the 279 00:13:03,040 --> 00:13:04,880 text that appears after the signature. 280 00:13:04,880 --> 00:13:07,400 Wow. Yeah, but in the majority of 281 00:13:07,400 --> 00:13:10,560 states today, and under the uniform Probate Code, the UPC, 282 00:13:10,920 --> 00:13:14,200 the location is flexible. Anywhere on the document is fine 283 00:13:14,440 --> 00:13:16,880 as long as it was intended to authenticate the will. 284 00:13:17,480 --> 00:13:21,520 But for practice, always sign at the end, OK? 285 00:13:22,240 --> 00:13:25,520 What if I'm too weak to sign? Maybe I've had a stroke or I'm 286 00:13:25,560 --> 00:13:27,800 physically paralyzed. Can I have you sign for me? 287 00:13:27,880 --> 00:13:31,920 Yes, but we need to follow the proxy signature rule strictly. 288 00:13:32,280 --> 00:13:35,240 It requires 2 things. First, it must be at the 289 00:13:35,240 --> 00:13:37,760 testator's direction. You have to tell me to do it. 290 00:13:37,760 --> 00:13:39,920 You can't just nod vaguely, you need to communicate the 291 00:13:39,920 --> 00:13:41,760 instruction. And 2nd, it must be in the 292 00:13:41,760 --> 00:13:44,320 testator's conscious presence. So I can't call you and say, 293 00:13:44,320 --> 00:13:46,320 hey, go into my office and sign my will for me, No. 294 00:13:46,600 --> 00:13:47,760 I have to be right there with you. 295 00:13:47,960 --> 00:13:50,280 I can't take the will into the other room and sign your name. 296 00:13:50,440 --> 00:13:53,000 I have to do it right there while you are aware of it. 297 00:13:53,160 --> 00:13:55,880 That brings us to the witnesses, the audience for this 298 00:13:55,880 --> 00:13:57,920 performance. Usually two people, right? 299 00:13:58,000 --> 00:14:01,640 Universally, 2 competent adults and they have to observe 300 00:14:01,640 --> 00:14:04,440 something specific. They must either see the 301 00:14:04,440 --> 00:14:07,560 testator sign or hear the testator acknowledge the 302 00:14:07,560 --> 00:14:09,720 signature. So if I signed it privately an 303 00:14:09,720 --> 00:14:12,680 hour ago, I can bring it to you and say this is my signature, 304 00:14:12,680 --> 00:14:14,400 please witness it. That works. 305 00:14:14,440 --> 00:14:16,880 It works perfectly. Now here is where it gets really 306 00:14:16,880 --> 00:14:19,560 interesting, and where I think the law gets a little sci-fi. 307 00:14:20,560 --> 00:14:24,440 But presence tests. This is a huge exam topic, 308 00:14:24,440 --> 00:14:27,040 isn't? It huge a frequent fact pattern. 309 00:14:27,680 --> 00:14:30,680 The witnesses usually have to sign in the testator's presence. 310 00:14:30,920 --> 00:14:32,760 But what does presence actually mean? 311 00:14:32,760 --> 00:14:36,480 We have two competing tests and the difference is dramatic. 312 00:14:37,120 --> 00:14:39,440 Let's start with the old school one, the line of sight test. 313 00:14:39,640 --> 00:14:43,440 This is the traditional strict test derived from English common 314 00:14:43,440 --> 00:14:45,920 law. The testator must be physically 315 00:14:45,920 --> 00:14:49,120 capable of seeing the witnesses sign if they were to look 316 00:14:49,400 --> 00:14:50,880 without having to change their position. 317 00:14:50,880 --> 00:14:53,240 If they were to look so I don't actually have to stare at their 318 00:14:53,240 --> 00:14:55,240 pen. You don't have to laser focus on 319 00:14:55,240 --> 00:14:59,800 them, but, and this is the key, you must be physically capable 320 00:14:59,800 --> 00:15:02,320 of seeing them without changing your position. 321 00:15:02,800 --> 00:15:05,040 Let me give you the classic Horror Story scenario. 322 00:15:05,800 --> 00:15:08,360 You are an elderly man in a hospital bed. 323 00:15:08,840 --> 00:15:11,640 You are weak. You can't turn your head easily. 324 00:15:11,920 --> 00:15:15,400 You sign your will. The two nurses, your witnesses, 325 00:15:15,640 --> 00:15:18,160 take the will to a chest of drawers against the wall to find 326 00:15:18,160 --> 00:15:19,720 it because they need a flat surface. 327 00:15:19,720 --> 00:15:21,560 OK, standard hospital room stuff. 328 00:15:21,560 --> 00:15:25,280 But the chest of drawers is slightly behind your head, or 329 00:15:25,320 --> 00:15:28,600 maybe there is a privacy curtain drawn halfway, or maybe they 330 00:15:28,600 --> 00:15:31,080 step just outside the door frame to use the counter in the hall. 331 00:15:31,880 --> 00:15:35,640 If you, lying in that bed cannot draw a straight, uninterrupted 332 00:15:35,640 --> 00:15:38,760 visual line to the pen hitting the paper, the witnessing is 333 00:15:38,760 --> 00:15:40,720 invalid. Even if I hear them, even if I'm 334 00:15:40,720 --> 00:15:42,920 talking to them like, hey, thanks for signing that guys. 335 00:15:42,960 --> 00:15:45,040 Doesn't matter. In a strict line of sight 336 00:15:45,040 --> 00:15:48,560 jurisdiction, that will is void. The court argues that if you 337 00:15:48,560 --> 00:15:50,600 can't see them, they could be switching the documents. 338 00:15:50,600 --> 00:15:52,920 They could be signing a grocery list instead of your will. 339 00:15:53,040 --> 00:15:55,960 That seems incredibly paranoid and frankly, outdated. 340 00:15:56,080 --> 00:15:58,600 That feels like a rule from 1600s England. 341 00:15:58,760 --> 00:16:03,360 It is exactly a rule from 1600s England, and that's why the 342 00:16:03,360 --> 00:16:07,200 modern trend and the rule adopted by the UPC is the 343 00:16:07,200 --> 00:16:09,680 Conscious Presence Test. This sounds more reasonable. 344 00:16:09,680 --> 00:16:13,520 It is under conscious presence. We don't care about geometry or 345 00:16:13,520 --> 00:16:17,920 laser beams. We ask did the testator, through 346 00:16:17,920 --> 00:16:22,160 sight, hearing or general awareness, comprehend that the 347 00:16:22,160 --> 00:16:23,680 witness was in the act of signing? 348 00:16:23,680 --> 00:16:26,720 So in my hospital bed scenario. In the hospital scenario, you 349 00:16:26,720 --> 00:16:28,280 are fine. You hear the nurses, you know 350 00:16:28,280 --> 00:16:29,880 what they are doing, you ask them to do it. 351 00:16:29,880 --> 00:16:34,080 That's conscious presence. This test is vital for, say, a 352 00:16:34,080 --> 00:16:36,720 blind testator under strict line of sight. 353 00:16:36,720 --> 00:16:39,920 A blind person theoretically couldn't execute a will because 354 00:16:39,920 --> 00:16:42,960 they can't see the witnesses. Conscious Presence fixes that. 355 00:16:43,000 --> 00:16:45,840 So if you are a law student staring at a fact pattern, you 356 00:16:45,840 --> 00:16:47,840 need to check the jurisdiction immediately. 357 00:16:47,840 --> 00:16:50,640 First thing you do, if the prompt says state X follows the 358 00:16:50,640 --> 00:16:53,640 common law, get out your ruler and protractor, you're looking 359 00:16:53,640 --> 00:16:56,560 for block lines of sight. If it says UPC jurisdiction, 360 00:16:56,760 --> 00:16:58,200 you're looking for general awareness. 361 00:16:58,360 --> 00:17:00,600 OK, let's talk about who these witnesses are. 362 00:17:00,800 --> 00:17:04,680 We are moving into Section 3, the intended witness problem. 363 00:17:04,680 --> 00:17:07,880 This is the classic movie trope. The creepy Butler witnesses the 364 00:17:07,880 --> 00:17:12,119 will and oh look, the Butler gets $1,000,000 or the lawyer 365 00:17:12,119 --> 00:17:13,760 writes himself into the will. Right. 366 00:17:13,880 --> 00:17:17,400 An interested witness is one who stands to receive a financial 367 00:17:17,400 --> 00:17:20,920 benefit under the will. The law is naturally suspicious 368 00:17:20,920 --> 00:17:23,640 of this because of the risk of fraud or undue influence. 369 00:17:24,640 --> 00:17:27,359 If I'm getting paid to sign, I might be less likely to report 370 00:17:27,359 --> 00:17:29,320 that you were drunk or coerced when you signed it. 371 00:17:29,440 --> 00:17:32,880 So if a beneficiary signs as a witness, is the will dead? 372 00:17:33,120 --> 00:17:37,800 At common law, the old obsolete rule, yes, the entire will was 373 00:17:37,800 --> 00:17:39,760 void in Toto. The whole thing collapsed. 374 00:17:39,840 --> 00:17:41,720 Wow, nuclear option. Exactly. 375 00:17:42,000 --> 00:17:45,200 Imagine invalidating A multimillion dollar estate plan 376 00:17:45,360 --> 00:17:48,600 because the son who's getting $500 was one of the witnesses. 377 00:17:48,600 --> 00:17:52,320 It was too harsh, so the modern rule which most states follow is 378 00:17:52,320 --> 00:17:55,360 the purging doctrine. Purging sounds ominous. 379 00:17:55,360 --> 00:17:58,240 It's a compromise. Under this rule, the will itself 380 00:17:58,240 --> 00:18:00,040 remains valid. We don't throw out the 381 00:18:00,040 --> 00:18:01,800 testator's intent for the whole estate. 382 00:18:02,000 --> 00:18:05,400 Instead, we just purge or void the gift to the Witness. 383 00:18:05,520 --> 00:18:09,080 So the Butler signs the will is valid, but the Butler gets 384 00:18:09,080 --> 00:18:10,920 nothing. Usually, yes. 385 00:18:11,360 --> 00:18:13,320 The idea is to remove the incentive for fraud. 386 00:18:13,800 --> 00:18:16,360 If you can't profit from witnessing, you have no reason 387 00:18:16,360 --> 00:18:18,720 to lie. But there are exceptions. 388 00:18:18,960 --> 00:18:22,160 You need to know how a witness can keep their gift on an exam. 389 00:18:22,160 --> 00:18:26,040 Give me the exceptions. 1st the supernumerary exception and it 390 00:18:26,040 --> 00:18:28,880 basically means extra if there were enough disinterested 391 00:18:28,880 --> 00:18:31,160 witnesses. The interested 1 is just extra. 392 00:18:31,680 --> 00:18:34,760 So if the state requires 2 witnesses and you had three, two 393 00:18:34,760 --> 00:18:37,440 strangers and the Butler, the Butler is supernumerary. 394 00:18:37,720 --> 00:18:40,480 His signature wasn't needed to validate the will because the 395 00:18:40,480 --> 00:18:43,280 two strangers covered the requirement, so he keeps his 396 00:18:43,280 --> 00:18:44,440 gift. That makes sense. 397 00:18:44,520 --> 00:18:47,000 No harm, no foul. What if he was one of only two? 398 00:18:47,320 --> 00:18:49,760 Then you look for the intestacy or excess rule. 399 00:18:49,760 --> 00:18:52,520 This is a bit of math, so it's slow down if the witness would 400 00:18:52,520 --> 00:18:55,640 have inherited from the testator anyway under the laws of 401 00:18:55,640 --> 00:18:58,080 intestacy. Say the witness is the 402 00:18:58,080 --> 00:19:00,560 testator's daughter. She doesn't lose everything. 403 00:19:00,560 --> 00:19:02,880 Because she was going to get money regardless of the will. 404 00:19:03,120 --> 00:19:05,800 Right, but we don't want her to profit from her own witnessing, 405 00:19:06,320 --> 00:19:09,960 so she takes the lesser of the bequest in the will or her 406 00:19:09,960 --> 00:19:12,280 intestate share. Let's do a quick example. 407 00:19:12,280 --> 00:19:13,640 This is where I usually get lost. 408 00:19:13,840 --> 00:19:17,360 OK, visualize a pie with $100,000. 409 00:19:18,000 --> 00:19:22,560 Testator dies leaving a will giving that entire $100,000 pie 410 00:19:22,880 --> 00:19:25,200 to his daughter. The daughter is also a witness. 411 00:19:25,200 --> 00:19:27,280 OK, daughter gets 100K in the will. 412 00:19:27,280 --> 00:19:29,040 She witnessed it. Now let's look at what would 413 00:19:29,040 --> 00:19:32,400 happen if the will failed. If there was no will in test to 414 00:19:32,400 --> 00:19:36,400 see, let's say she would only get a small slice $20,000. 415 00:19:36,640 --> 00:19:40,360 So the will gave her a massive raise from 20K to 100K. 416 00:19:40,360 --> 00:19:43,400 Exactly. The purging statute says you 417 00:19:43,400 --> 00:19:45,200 don't get the profit from your crime. 418 00:19:45,600 --> 00:19:48,480 You can't use your signature to upgrade from the 20 K slice to 419 00:19:48,480 --> 00:19:51,680 the 100K pie. So we cap her, she gets the 20 420 00:19:51,680 --> 00:19:53,920 K. The remaining 80K that goes to 421 00:19:53,920 --> 00:19:55,920 the other heirs or into the residue. 422 00:19:56,440 --> 00:19:59,200 She essentially witnessed herself out of an $80,000 423 00:19:59,200 --> 00:20:01,520 profit. That is a crucial distinction. 424 00:20:01,520 --> 00:20:03,960 Now flip it. What if the will gave her less 425 00:20:03,960 --> 00:20:06,760 than intestacy? Say the will gave her 10,000, 426 00:20:07,120 --> 00:20:09,320 but intestacy would have given her 20,000. 427 00:20:09,520 --> 00:20:12,000 In that case she takes the 10,000, she takes the lesser 428 00:20:12,000 --> 00:20:15,040 amount. The rule is basically you can 429 00:20:15,040 --> 00:20:17,120 never come out ahead by witnessing the will. 430 00:20:17,760 --> 00:20:21,160 OK, before we leave formalities, what is a self proving 431 00:20:21,160 --> 00:20:22,960 affidavit? It sounds like something that 432 00:20:22,960 --> 00:20:25,560 solves all our procedural problems. 433 00:20:25,560 --> 00:20:27,080 It solves procedural problems, yes. 434 00:20:27,280 --> 00:20:29,840 Yeah, It's a notarized statement signed by the testator and 435 00:20:29,840 --> 00:20:32,200 witnesses, usually attached to the back of the will. 436 00:20:32,800 --> 00:20:34,440 It says we swear we did this right. 437 00:20:34,880 --> 00:20:36,960 We were here, he was sober. We signed. 438 00:20:37,160 --> 00:20:38,800 And its function. Efficiency. 439 00:20:38,920 --> 00:20:41,760 It allows the will to be admitted to probate without 440 00:20:41,760 --> 00:20:44,680 dragging the witnesses into court 20 years later to testify. 441 00:20:44,960 --> 00:20:46,680 It substitutes for live testimony. 442 00:20:46,840 --> 00:20:49,000 If you don't have this, the executor has to track down the 443 00:20:49,000 --> 00:20:51,960 witnesses who might be dead or move to Florida and get them 444 00:20:51,960 --> 00:20:53,760 into court. But there is a trap here for 445 00:20:53,760 --> 00:20:57,240 students, right? Yes, a self proving affidavit 446 00:20:57,480 --> 00:21:00,160 cannot cure a defect in the execution itself. 447 00:21:00,560 --> 00:21:04,040 This is a classic exam trick. The fact pattern will show a 448 00:21:04,040 --> 00:21:07,720 will where the witnesses didn't see the testator sign a presence 449 00:21:07,720 --> 00:21:12,120 violation, but then they all sign a notarized affidavit 450 00:21:12,120 --> 00:21:14,480 saying we did it right. And students think, oh, the 451 00:21:14,480 --> 00:21:16,440 affidavit fixes it. It does not. 452 00:21:16,760 --> 00:21:19,800 An affidavit that swears to a lie doesn't make the lie true. 453 00:21:20,040 --> 00:21:21,680 It only proves the signatures were made. 454 00:21:21,680 --> 00:21:23,560 It doesn't validate A void process. 455 00:21:23,560 --> 00:21:27,080 OK, we have covered the strict rules, but sometimes people 456 00:21:27,080 --> 00:21:29,080 don't follow the rules. They write wills on tractor 457 00:21:29,080 --> 00:21:31,000 fenders, which I've heard actually happened, or just 458 00:21:31,200 --> 00:21:35,680 scribble something on a notepad. Section 4 Alternatives to strict 459 00:21:35,680 --> 00:21:38,560 formalities. Let's talk about holographic 460 00:21:38,560 --> 00:21:40,640 wills. Yes, the tractor Fender case is 461 00:21:40,640 --> 00:21:43,320 a law school legend. A farmer was pinned under his 462 00:21:43,320 --> 00:21:46,320 tractor, dying, and scratched his will into the paint of the 463 00:21:46,320 --> 00:21:47,480 Fender with his pocket. Nice. 464 00:21:47,920 --> 00:21:51,080 The court accepted it. That is a holographic will, a 465 00:21:51,080 --> 00:21:53,560 will that is handwritten and signed by the testator, 466 00:21:53,560 --> 00:21:56,160 typically without any witnesses. No witnesses at all. 467 00:21:56,360 --> 00:21:59,000 None but half the states recognize these. 468 00:21:59,760 --> 00:22:03,120 The theory is that if it is in your own handwriting, that is a 469 00:22:03,120 --> 00:22:05,040 pretty good guarantee against forgery. 470 00:22:05,720 --> 00:22:08,440 It's hard to forge an entire page of someone's handwriting 471 00:22:08,440 --> 00:22:10,520 convincingly. But how much has to be in 472 00:22:10,520 --> 00:22:12,520 handwriting? Can I fill out a pre printed 473 00:22:12,520 --> 00:22:15,920 form? That is the big debate in strict 474 00:22:16,000 --> 00:22:18,800 old school jurisdictions. It must be entirely in the 475 00:22:18,800 --> 00:22:22,400 testator's handwriting. If you use hotel stationary that 476 00:22:22,400 --> 00:22:25,560 has Marriott printed at the top or a will form you bought at a 477 00:22:25,560 --> 00:22:28,520 store, some old courts might have thrown it out because it 478 00:22:28,520 --> 00:22:30,960 contained printed matter. That seems extreme. 479 00:22:30,960 --> 00:22:33,200 The Marriott logo invalidates my will. 480 00:22:33,200 --> 00:22:35,880 It was extreme. That's why the UPC and modern 481 00:22:35,880 --> 00:22:38,200 trend apply the material provisions rule. 482 00:22:38,480 --> 00:22:41,880 Only the important stuff, the gift, the beneficiaries, the 483 00:22:41,880 --> 00:22:43,720 signature needs to be handwritten. 484 00:22:44,080 --> 00:22:46,720 You can use a pre printed form with blanks and as long as you 485 00:22:46,720 --> 00:22:49,760 fill in the blanks by hand like I give my house to Bob, it's 486 00:22:49,760 --> 00:22:51,480 valid. And what about intent? 487 00:22:51,760 --> 00:22:54,120 A handwritten note can look like a diary entry. 488 00:22:54,120 --> 00:22:56,160 Just saying. I think I'll give the card to 489 00:22:56,160 --> 00:22:58,840 Bob. Yes, extrinsic evidence is 490 00:22:58,840 --> 00:23:02,600 admissible here to prove animus test Andy intent. 491 00:23:03,080 --> 00:23:05,280 If the note is ambiguous, the court will look at the 492 00:23:05,280 --> 00:23:07,600 circumstances. Did you keep it in your safe 493 00:23:07,600 --> 00:23:09,920 deposit box? Did you tell people I wrote my 494 00:23:09,920 --> 00:23:12,480 will or was it found in the trash? 495 00:23:12,800 --> 00:23:16,400 Now for the exam distinction, if I have a holographic will, do I 496 00:23:16,400 --> 00:23:18,640 need to worry about line of sight or presence? 497 00:23:18,640 --> 00:23:21,920 No, that is the trap. Do not apply attested will 498 00:23:21,920 --> 00:23:25,520 formalities to holographic wills if it's a valid holograph. 499 00:23:25,520 --> 00:23:27,520 Doesn't need witnesses, so it doesn't need presence. 500 00:23:28,160 --> 00:23:31,040 Don't waste time analyzing line of sight on a document that has 501 00:23:31,040 --> 00:23:33,000 no witnesses. All right, but what if I screw 502 00:23:33,000 --> 00:23:34,680 up everything I try to do in a tested? 503 00:23:34,680 --> 00:23:37,160 Will I mess up the witnesses? I try a holographic? 504 00:23:37,160 --> 00:23:39,840 Will I type it out so it fails that rule too? 505 00:23:40,000 --> 00:23:43,000 Is it game over or is there a savior? 506 00:23:43,080 --> 00:23:45,800 Enter the revolutionary approach, the harmless error 507 00:23:45,800 --> 00:23:47,840 doctrine. This is found in UPC section 508 00:23:47,840 --> 00:23:51,600 2-503. I love that we call a probate 509 00:23:51,600 --> 00:23:53,800 rule revolutionary. It sounds like we are storming 510 00:23:53,800 --> 00:23:56,080 the best deal. In the legal world, it is. 511 00:23:56,600 --> 00:23:58,640 For centuries, strict compliance was king. 512 00:23:59,120 --> 00:24:00,520 If you missed a rule, you failed. 513 00:24:01,040 --> 00:24:03,160 The harmless error doctrine changes the game. 514 00:24:03,520 --> 00:24:06,680 It is a dispensing power. It says even if you messed up 515 00:24:06,680 --> 00:24:10,120 the statutory formalities, maybe you only had one witness or the 516 00:24:10,120 --> 00:24:13,240 witnesses forgot to sign, the document can still be valid. 517 00:24:13,240 --> 00:24:15,600 But there has to be a catch. There is. 518 00:24:15,800 --> 00:24:18,840 You need clear and convincing evidence of the decedent's 519 00:24:18,840 --> 00:24:21,000 intent. That is a very high burden of 520 00:24:21,000 --> 00:24:23,720 proof, higher than the usual preponderance of the evidence. 521 00:24:24,000 --> 00:24:26,720 You have to really prove that the testator intended this 522 00:24:26,720 --> 00:24:28,840 specific document to be their will. 523 00:24:29,320 --> 00:24:31,640 So on an exam, if I see a defective will. 524 00:24:31,640 --> 00:24:33,560 Analyze it twice. This is the pro tip. 525 00:24:33,640 --> 00:24:35,600 First analyze it under strict compliance. 526 00:24:35,680 --> 00:24:38,600 Tell the grader the will fails because the witness left the 527 00:24:38,600 --> 00:24:39,720 room and broke the line of sight. 528 00:24:40,200 --> 00:24:42,920 Then pivot, say. However, if this jurisdiction 529 00:24:42,920 --> 00:24:45,560 applies the harmless error doctrine, the will might be 530 00:24:45,560 --> 00:24:48,920 saved if the proponent can show clear and convincing evidence of 531 00:24:48,920 --> 00:24:51,040 intent. That is top tier advice. 532 00:24:51,040 --> 00:24:53,800 It shows you know both the rule and the exception. 533 00:24:54,200 --> 00:24:56,320 OK, we have built the will. We've saved it from errors. 534 00:24:56,320 --> 00:25:00,480 Now let's destroy it. Section 5 revocation. 535 00:25:01,960 --> 00:25:04,840 A will is ambulatory, right? It walks around with you until 536 00:25:04,840 --> 00:25:05,800 you die. Correct. 537 00:25:06,040 --> 00:25:08,280 It is revocable until the moment of death. 538 00:25:09,200 --> 00:25:11,160 You can wake up every morning and write a new will if you 539 00:25:11,160 --> 00:25:14,200 want, and there are three main ways to kill a will. 540 00:25:14,200 --> 00:25:16,200 Method one. Subsequent rating. 541 00:25:16,280 --> 00:25:18,960 You write a new will. You can revoke the old one 542 00:25:18,960 --> 00:25:22,080 expressly. I hereby revoke all prior wills. 543 00:25:22,440 --> 00:25:24,720 That is the first sentence of almost every professionally 544 00:25:24,720 --> 00:25:29,520 drafted will by inconsistency. If will 2 gives your entire 545 00:25:29,520 --> 00:25:32,120 state to your sister, and will one gave it to your brother, 546 00:25:32,120 --> 00:25:35,040 will 2 revokes will one by implication because they can't 547 00:25:35,040 --> 00:25:36,720 both stand. You can't give everything to two 548 00:25:36,720 --> 00:25:38,400 different. People, what if Will 2 only 549 00:25:38,400 --> 00:25:41,240 gives away my car but leaves the rest of Will 1 alone? 550 00:25:41,240 --> 00:25:44,520 Then it's a partial revocation. Will 2 is likely a codicil, A 551 00:25:44,520 --> 00:25:46,080 supplement. The courts will read them 552 00:25:46,080 --> 00:25:48,560 together. Will 1 still controls the house 553 00:25:48,560 --> 00:25:50,800 and the bank account. Will 2 controls the car. 554 00:25:50,960 --> 00:25:53,880 They coexist. OK, method 2 is the dramatic 555 00:25:53,880 --> 00:25:54,720 one. Physical act. 556 00:25:55,000 --> 00:25:57,320 This is the fireplace scene. Fire, tearing. 557 00:25:57,320 --> 00:26:02,720 Shredding, obliterating. But you need two things, the act 558 00:26:02,960 --> 00:26:05,480 and the intent. Animus Rivacondi. 559 00:26:05,720 --> 00:26:09,200 So let's play with this if my house burns down and my will is 560 00:26:09,200 --> 00:26:10,680 inside. Not revoked. 561 00:26:11,240 --> 00:26:13,760 That's an accident. You didn't intend to burn the 562 00:26:13,760 --> 00:26:16,920 will, the fire did. If you can prove the contents of 563 00:26:16,920 --> 00:26:19,000 the will, maybe with a photocopy, you can still 564 00:26:19,000 --> 00:26:21,240 probate. It OK flip it if I intend to 565 00:26:21,240 --> 00:26:24,520 revoke it and I throw it toward the fire but it misses and lands 566 00:26:24,520 --> 00:26:26,720 on the rug and doesn't burn. Not revoked. 567 00:26:27,360 --> 00:26:30,800 If you had intent but no act, the document is still physically 568 00:26:30,800 --> 00:26:32,760 intact. You need both the destruction 569 00:26:32,760 --> 00:26:34,680 and the intent happening at the same time. 570 00:26:34,680 --> 00:26:36,160 Can I have someone else tear it up for me? 571 00:26:36,360 --> 00:26:38,800 Only if it is at your direction and in your presence. 572 00:26:39,120 --> 00:26:41,040 Same rules as the proxy signature. 573 00:26:41,360 --> 00:26:44,760 If you call your lawyer and say I'm angry at my kids, tear up my 574 00:26:44,760 --> 00:26:47,120 will and she hangs up and runs it through the shredder. 575 00:26:47,320 --> 00:26:50,120 Invalid revocation. Correct, not in your presence. 576 00:26:50,160 --> 00:26:52,720 The will is technically still valid even though it's confetti 577 00:26:52,720 --> 00:26:54,120 in a bin. That's a massive mess to 578 00:26:54,120 --> 00:26:57,440 litigate, but legally the revocation failed. 579 00:26:57,640 --> 00:27:00,280 Now there is a presumption here that scares people. 580 00:27:00,560 --> 00:27:04,200 The lost will presumption. Yes, this is crucial. 581 00:27:04,840 --> 00:27:07,880 If a will was last known to be in the testator's possession, 582 00:27:07,880 --> 00:27:11,160 like you took it home from the lawyer's office, but we can't 583 00:27:11,160 --> 00:27:14,640 find it after you die, the law presumes you destroyed it with 584 00:27:14,640 --> 00:27:17,760 the intent to revoke it. So if I just lose it in a pile 585 00:27:17,760 --> 00:27:20,800 of magazines or my cat knocks it behind the radiator, the court 586 00:27:20,800 --> 00:27:24,160 assumes I tore it up, Yes. It's a rebuttable presumption, 587 00:27:24,160 --> 00:27:27,560 meaning your heirs can try to prove it was lost or stolen, but 588 00:27:27,560 --> 00:27:29,360 it's a hard presumption to overcome. 589 00:27:30,040 --> 00:27:32,880 The lesson? Keep your will in a safe place 590 00:27:33,120 --> 00:27:35,520 or leave it with the lawyer. Method three. 591 00:27:35,800 --> 00:27:38,400 Operation of law. Things that happen automatically 592 00:27:38,400 --> 00:27:41,800 without you touching the paper. Divorce is the big one in most 593 00:27:41,800 --> 00:27:43,520 states. Divorce automatically revokes 594 00:27:43,560 --> 00:27:47,200 any provision for the ex-spouse. We treat the ex spouses if they 595 00:27:47,200 --> 00:27:49,840 predeceased the testator. Harsh but fair. 596 00:27:50,280 --> 00:27:52,560 I assume most people don't want to leave their estate to their 597 00:27:52,560 --> 00:27:54,600 ex. What about new people, omitted 598 00:27:54,600 --> 00:27:57,320 spouses or children? If you get married after writing 599 00:27:57,320 --> 00:28:00,480 your will or have a kid after writing your role, the law 600 00:28:00,480 --> 00:28:03,040 generally assumes you didn't mean to cut them out. 601 00:28:03,080 --> 00:28:04,680 You just haven't updated the paperwork. 602 00:28:04,880 --> 00:28:07,520 You were busy having a baby, not calling your lawyer. 603 00:28:08,560 --> 00:28:12,040 So the omitted spouse or pretermitted air statutes 604 00:28:12,360 --> 00:28:14,400 usually give them an intestate share. 605 00:28:14,840 --> 00:28:16,920 It forces the will to open up and let them in. 606 00:28:17,320 --> 00:28:20,920 OK, we are in the final stretch. We have created wills, we have 607 00:28:20,920 --> 00:28:23,600 revoked them, but can we bring them back? 608 00:28:23,680 --> 00:28:27,640 Section 6 revival. The revival problem here is the 609 00:28:27,640 --> 00:28:29,560 sequence and you need to track this for exams. 610 00:28:29,960 --> 00:28:34,120 You write will one, you write will too, which revokes will 611 00:28:34,120 --> 00:28:36,360 one. Then later you decide you hate 612 00:28:36,360 --> 00:28:38,040 will too, so you revoke will too. 613 00:28:38,280 --> 00:28:40,360 Is will one back? It feels like it should be. 614 00:28:40,360 --> 00:28:42,800 I got rid of the replacement, so the original should stand. 615 00:28:42,800 --> 00:28:45,440 That is the assumption of the automatic revival minority rule, 616 00:28:45,800 --> 00:28:48,120 but it's not universal. Some courts say no. 617 00:28:48,440 --> 00:28:51,480 What are the other approaches? Another minority approach often 618 00:28:51,480 --> 00:28:55,680 called the anti revival approach says no revival absent re 619 00:28:55,680 --> 00:28:57,680 execution. Will one is dead. 620 00:28:58,000 --> 00:29:01,640 You killed it with will too. Killing will too doesn't bring 621 00:29:01,640 --> 00:29:04,400 will one back to life. If you want will one back, you 622 00:29:04,400 --> 00:29:05,960 have to sign it again with witnesses. 623 00:29:06,040 --> 00:29:09,680 And the UPC or modern trend? It depends on the testator's 624 00:29:09,680 --> 00:29:11,200 intent. We look at the evidence. 625 00:29:11,440 --> 00:29:15,000 Did you revoke will too? Thinking would come back. 626 00:29:15,000 --> 00:29:17,560 Did you say I'm tearing this up so the old one works? 627 00:29:17,920 --> 00:29:20,760 If yes, the court revives it. That leads us to one of the most 628 00:29:20,760 --> 00:29:23,160 complex doctrines in this entire field. 629 00:29:23,360 --> 00:29:26,360 It sounds like a medical Condition Dependent Relative 630 00:29:26,360 --> 00:29:29,200 Revocation, or DRR. This is the equitable safety 631 00:29:29,200 --> 00:29:31,600 net. DRR is a doctrine of presumed 632 00:29:31,600 --> 00:29:34,240 intent. It disregards revocation if that 633 00:29:34,240 --> 00:29:36,680 revocation was based on mistake of law or fact. 634 00:29:36,800 --> 00:29:39,800 Breakdown the classic scenario for us because the dependent 635 00:29:39,800 --> 00:29:41,760 relative revocation is a mouthful, OK. 636 00:29:41,960 --> 00:29:43,520 Think of it as a conditional revocation. 637 00:29:43,680 --> 00:29:45,880 Testator has will one. They want to make a change, so 638 00:29:45,880 --> 00:29:49,440 they write will 2 and Tareq will one, but will two turns out to 639 00:29:49,440 --> 00:29:51,560 be invalid. Maybe they only had one witness. 640 00:29:51,560 --> 00:29:54,880 So Will 2 is a dud, but will one is torn up so now they have no 641 00:29:54,880 --> 00:29:57,320 will. Without DRR, yes they die 642 00:29:57,320 --> 00:29:59,640 intestate. But the court looks at this and 643 00:29:59,640 --> 00:30:03,640 says wait, the testator only tore up Will One because they 644 00:30:03,640 --> 00:30:06,960 thought Will 2 was valid. The revocation was dependent on 645 00:30:06,960 --> 00:30:10,200 the mistake. So the court unrevokes will one. 646 00:30:10,240 --> 00:30:12,480 Exactly. We pretend the tearing ever 647 00:30:12,480 --> 00:30:13,400 happened. Why? 648 00:30:13,720 --> 00:30:16,080 Because the court assumes the testator would prefer the old 649 00:30:16,080 --> 00:30:19,000 will one over intestacy. That is a crucial point. 650 00:30:19,200 --> 00:30:22,480 DRR only works if Will 1 is better than intestacy, right? 651 00:30:22,680 --> 00:30:26,240 If will One gave everything to a stranger and intestacy gives it 652 00:30:26,240 --> 00:30:29,840 to the testator's children who the testator loves, the court 653 00:30:29,840 --> 00:30:32,880 won't apply DRR. It's an equitable doctrine. 654 00:30:32,960 --> 00:30:36,040 It's about getting as close to the testators likely intent as 655 00:30:36,040 --> 00:30:38,480 possible. If reviving the old will gets as 656 00:30:38,480 --> 00:30:41,360 closer to what they wanted an intestacy does we revive it. 657 00:30:41,560 --> 00:30:44,040 If it doesn't, we leave it dead. Finally, let's touch on Section 658 00:30:44,040 --> 00:30:46,240 7 codicils and the exam framework. 659 00:30:46,400 --> 00:30:48,320 A codicil is just an amendment right. 660 00:30:48,480 --> 00:30:52,880 Yes, but remember it requires the same formalities as a will. 661 00:30:53,200 --> 00:30:56,120 You can't just scribble in the margins of your typed will. 662 00:30:56,280 --> 00:30:59,840 That is not a valid codicil. That is usually an attempted and 663 00:30:59,840 --> 00:31:03,520 failed holographic change. If you want to change your will, 664 00:31:03,840 --> 00:31:07,120 you basically have to execute a mini will with witnesses. 665 00:31:07,560 --> 00:31:10,640 And republication by Codicil. This means a valid codicil 666 00:31:10,640 --> 00:31:13,600 redates the original will to the date of the codicil. 667 00:31:14,000 --> 00:31:18,080 This can cure defects if you were drunk and lacked capacity 668 00:31:18,080 --> 00:31:21,720 when you sign the will in 2020. But we're sober and capable when 669 00:31:21,720 --> 00:31:25,840 you sign the Codicil in 2024, the Codicil republishes the will 670 00:31:25,840 --> 00:31:29,480 and validates it as of 2024. It wipes the slate clean. 671 00:31:29,600 --> 00:31:31,560 OK, that is a ton of information. 672 00:31:31,560 --> 00:31:33,840 Let's create a quick checklist for the Lister to take into the 673 00:31:33,840 --> 00:31:35,840 exam room. When you stare at a fact 674 00:31:35,840 --> 00:31:38,280 pattern, what is the order of operations? 675 00:31:38,320 --> 00:31:41,200 Whenever you see a Wells problem go in this order memorize this 676 00:31:41,200 --> 00:31:43,560 framework. One capacity and intent was the 677 00:31:43,560 --> 00:31:45,920 mind right? Look for age, mental state and 678 00:31:45,920 --> 00:31:49,440 intent 2 formalities Did they meet the strict writing 679 00:31:49,440 --> 00:31:52,440 signature and witness rules. Analyze line of sight versus 680 00:31:52,440 --> 00:31:54,320 conscious presence. Check the jurisdiction. 681 00:31:54,360 --> 00:31:58,760 Always 3 Harmless error If they failed formalities. 682 00:31:58,760 --> 00:32:01,400 Can we save it? Look for clear and convincing 683 00:32:01,400 --> 00:32:03,680 evidence. 4 interested witnesses. 684 00:32:04,120 --> 00:32:06,360 Do we need to purge a gift? Do the math. 685 00:32:06,440 --> 00:32:08,040 Watch out for the lesser of rule. 686 00:32:08,040 --> 00:32:11,880 Yep, 5 revocation. Did they kill the will by 687 00:32:11,880 --> 00:32:14,880 writing act or law? Check for the lost will 688 00:32:14,880 --> 00:32:19,680 presumption and six revival and DRR is a dead will coming back 689 00:32:19,680 --> 00:32:21,960 to life. Look for the mistake that caused 690 00:32:21,960 --> 00:32:24,680 the revocation. Boom, that is the road map. 691 00:32:24,720 --> 00:32:27,000 If you follow that structure, you won't get lost in the weeds. 692 00:32:27,320 --> 00:32:29,400 As we wrap up, what's the big take away here? 693 00:32:29,520 --> 00:32:31,960 We've seen strict rules and flexible exceptions. 694 00:32:31,960 --> 00:32:34,720 It feels a bit schizophrenic. The take away is the balance. 695 00:32:35,120 --> 00:32:37,680 The law is trying to do 2 contradictory things. 696 00:32:38,240 --> 00:32:41,720 Protect the testator from fraud by demanding strict formalities, 697 00:32:41,960 --> 00:32:44,720 but also protected testators intent from being defeated by 698 00:32:44,720 --> 00:32:47,480 technicalities. That is why we have the rigid 699 00:32:47,480 --> 00:32:50,320 witness presence rules sitting right next to the forgiving 700 00:32:50,320 --> 00:32:53,240 harmless error doctrine. We are constantly oscillating 701 00:32:53,240 --> 00:32:55,840 between follow the rules and do what they wanted. 702 00:32:55,840 --> 00:32:57,360 It is a bit ambivalent, isn't it? 703 00:32:57,360 --> 00:33:00,120 We make it incredibly hard to give away property, yet we work 704 00:33:00,120 --> 00:33:01,960 so hard to save defective wolves. 705 00:33:02,160 --> 00:33:05,640 It is, and here is a thought to leave you with Why do we care so 706 00:33:05,640 --> 00:33:07,760 much? The person is dead? 707 00:33:08,160 --> 00:33:10,720 Why do we spend millions of dollars in court fights to 708 00:33:10,720 --> 00:33:13,320 figure out if they meant conscious presence or line of 709 00:33:13,320 --> 00:33:16,000 sight? It's because in the end, the 710 00:33:16,000 --> 00:33:19,360 last will and testament is the final exertion of human ego. 711 00:33:19,800 --> 00:33:23,560 It's the last time you get to speak to the world, and the law 712 00:33:23,920 --> 00:33:26,960 in all its complexity is just trying to make sure we hear you 713 00:33:26,960 --> 00:33:28,720 correctly. That is a powerful thought. 714 00:33:28,720 --> 00:33:31,000 Your voice echoes even when you were gone if you followed the 715 00:33:31,000 --> 00:33:33,360 rules. Thanks for diving deep with us. 716 00:33:33,360 --> 00:33:35,640 Use that checklist on your next practice problem. 717 00:33:35,640 --> 00:33:37,040 Good luck out there. See you next time. 718 00:33:37,360 --> 00:33:39,880 All right, let's dive into the life cycle of a will. 719 00:33:40,160 --> 00:33:42,240 We're going to cover its creation, its potential 720 00:33:42,240 --> 00:33:44,320 destruction, and everything in between. 721 00:33:44,840 --> 00:33:46,960 Now, this is a big one. It's one of the most heavily 722 00:33:46,960 --> 00:33:49,720 tested topics on any bar exam, and for good reason. 723 00:33:50,160 --> 00:33:52,360 In this corner of the law, the details matter. 724 00:33:52,640 --> 00:33:56,280 Courts are incredibly strict, and one tiny mistake can change 725 00:33:56,320 --> 00:33:58,720 everything. Our job today is to make sure 726 00:33:58,720 --> 00:34:01,640 you have a rock solid clinical mastery of these rules. 727 00:34:02,320 --> 00:34:05,360 I mean, think about that. It sounds almost ridiculous, 728 00:34:05,400 --> 00:34:07,480 right? A witness signs in the hallway 729 00:34:07,480 --> 00:34:10,560 instead of the bedroom, and suddenly an entire will could be 730 00:34:10,560 --> 00:34:13,120 invalid. But the law of wills is built on 731 00:34:13,120 --> 00:34:15,560 this foundation of really strict formal rules. 732 00:34:15,560 --> 00:34:17,400 And they're not there just to be difficult. 733 00:34:17,800 --> 00:34:20,679 They exist to prevent fraud and to protect the person making the 734 00:34:20,679 --> 00:34:23,560 will, the testator. So we're going to break down 735 00:34:23,560 --> 00:34:26,600 these rules, see exactly why they matter, and understand how 736 00:34:26,600 --> 00:34:30,480 one small misstep can completely unravel someone's final wishes. 737 00:34:31,120 --> 00:34:33,040 So where do we start our analysis? 738 00:34:33,199 --> 00:34:36,920 Well, not with a piece of paper. We start inside the mind of the 739 00:34:36,920 --> 00:34:39,560 testator. Before a single word gets 740 00:34:39,560 --> 00:34:42,360 written, 2 crucial mental states have to be present. 741 00:34:42,679 --> 00:34:45,320 They need to have capacity and they need to have intent. 742 00:34:45,520 --> 00:34:48,199 If you don't have both of these, even the most perfectly written 743 00:34:48,199 --> 00:34:50,840 lawyer approved document is basically worthless. 744 00:34:51,440 --> 00:34:54,719 OK, So what does it mean to have capacity to make a will? 745 00:34:55,239 --> 00:34:58,600 The law breaks it down into this four part test and honestly it's 746 00:34:58,600 --> 00:35:01,160 a pretty low bar. But it has to be met right at 747 00:35:01,160 --> 00:35:04,200 the moment the will is signed. The testator has to understand 748 00:35:04,200 --> 00:35:07,960 one, what they own, two, who their family is, the natural 749 00:35:07,960 --> 00:35:11,640 objects of their bounty, 3 that they're making a will, and 4:00 750 00:35:11,720 --> 00:35:13,720 they have to be able to put it all together in some kind of 751 00:35:13,720 --> 00:35:17,440 coherent plan. Now, a key exam tip here is the 752 00:35:17,440 --> 00:35:20,920 idea of a lucid interval. Even someone with dementia can 753 00:35:20,920 --> 00:35:23,480 execute a valid will if they have a moment of clarity and 754 00:35:23,480 --> 00:35:27,280 meet these four elements. And here is a classic exam trap. 755 00:35:27,520 --> 00:35:31,760 Do not confuse the capacity to make a will with the capacity to 756 00:35:31,760 --> 00:35:34,400 sign a contract. As you can see, the standard for 757 00:35:34,400 --> 00:35:38,120 a will is much, much lower. Someone could be found legally 758 00:35:38,120 --> 00:35:41,680 incapable of entering a complex business deal, but at the same 759 00:35:41,680 --> 00:35:44,680 time be perfectly capable of deciding who gets their house. 760 00:35:44,960 --> 00:35:47,520 It's a critical distinction to keep straight in your head. 761 00:35:48,280 --> 00:35:51,440 So capacity is step one. But that's not enough. 762 00:35:51,960 --> 00:35:55,240 The testator also has to have what we call animus testandi 763 00:35:55,440 --> 00:35:58,160 testamentary intent. This is crucial. 764 00:35:58,440 --> 00:36:01,360 It means they must intend for this specific document they are 765 00:36:01,360 --> 00:36:05,000 signing to be their final will, Not just some notes, not a 766 00:36:05,000 --> 00:36:07,280 practice draft for their lawyer, but the real deal. 767 00:36:07,880 --> 00:36:10,400 And that intent has to be there right at the moment of signing. 768 00:36:10,960 --> 00:36:12,760 OK, we've handled the mental state. 769 00:36:12,920 --> 00:36:16,000 Now we move on to the physical part, the execution ceremony 770 00:36:16,000 --> 00:36:17,960 itself. You should think of this as a 771 00:36:17,960 --> 00:36:20,280 formal, almost ritualized process. 772 00:36:20,680 --> 00:36:23,680 These rules, these formalities, they have three main jobs. 773 00:36:23,920 --> 00:36:25,720 They create solid evidence for a court. 774 00:36:26,040 --> 00:36:28,800 They serve as a cautionary function, reminding the testator 775 00:36:28,800 --> 00:36:32,600 this is a serious act and they protect the testator from fraud 776 00:36:32,600 --> 00:36:35,960 or being pressured. So for a standard attested will, 777 00:36:35,960 --> 00:36:39,360 there are 4 core requirements, and courts traditionally demand 778 00:36:39,360 --> 00:36:42,760 strict literal compliance. One, it has to be in writing. 779 00:36:43,000 --> 00:36:46,040 Two, it has to be signed by the testator and pretty much any 780 00:36:46,040 --> 00:36:49,160 mark they intended to be their signature counts. 3, it needs to 781 00:36:49,160 --> 00:36:52,000 be witnessed by at least two credible adult witnesses, and 782 00:36:52,000 --> 00:36:54,280 four, those witnesses also have to sign the will. 783 00:36:54,520 --> 00:36:56,960 If you miss any one of these steps under the traditional 784 00:36:56,960 --> 00:37:00,120 view, the will is toast. Now let's drill down on a tricky 785 00:37:00,120 --> 00:37:02,560 detail. What does it actually mean for 786 00:37:02,560 --> 00:37:05,200 the witnesses to sign in the testator's presence? 787 00:37:05,560 --> 00:37:07,280 Well, jurisdictions are split on this. 788 00:37:07,560 --> 00:37:10,280 The old school traditional rule is the line of sight test. 789 00:37:10,400 --> 00:37:12,680 It's purely physical. Could the testator have 790 00:37:12,680 --> 00:37:15,600 literally seen the witnesses pen hit the paper if they had just 791 00:37:15,600 --> 00:37:17,520 looked? But the modern view, the 792 00:37:17,520 --> 00:37:19,520 conscious presence test, is more flexible. 793 00:37:19,720 --> 00:37:22,600 It asks if the testator was aware through sight, sound or 794 00:37:22,600 --> 00:37:25,080 just general consciousness that the signing was taking place. 795 00:37:25,360 --> 00:37:29,320 This is a huge issue to spot and analyse on an exam, so that's 796 00:37:29,320 --> 00:37:31,160 how it's supposed to work in a perfect world. 797 00:37:31,280 --> 00:37:33,560 But of course, things go wrong all the time. 798 00:37:33,880 --> 00:37:36,160 So what happens when there's a flaw in the ceremony? 799 00:37:36,600 --> 00:37:38,920 The law has come up with several doctrines to deal with these 800 00:37:38,920 --> 00:37:41,280 common problems. Sometimes they can save a will 801 00:37:41,280 --> 00:37:44,120 that would otherwise fail. Here's a classic problem. 802 00:37:44,320 --> 00:37:47,760 What if one of the witnesses is also a beneficiary in the will? 803 00:37:48,000 --> 00:37:50,040 The old common law rule was brutal. 804 00:37:50,200 --> 00:37:53,440 It just voided the entire will. But the modern rule is much 805 00:37:53,440 --> 00:37:55,480 smarter. It says the will itself is still 806 00:37:55,480 --> 00:37:58,960 valid, but we're going to purge or avoid the gift to that 807 00:37:58,960 --> 00:38:01,560 interested witness. It removes their financial 808 00:38:01,560 --> 00:38:03,600 incentive to lie about the execution. 809 00:38:03,920 --> 00:38:06,120 But there's an exception to the purge rule. 810 00:38:06,280 --> 00:38:09,080 If that witness was an heir who would have inherited anyway, 811 00:38:09,280 --> 00:38:12,520 they get to take the lesser of what the will gives them or what 812 00:38:12,520 --> 00:38:14,080 their state share would have been. 813 00:38:14,440 --> 00:38:17,960 Now, about half the states recognize a huge exception to 814 00:38:17,960 --> 00:38:20,800 the witness requirement. These are called holographic 815 00:38:20,800 --> 00:38:23,320 wills. A holographic will is one that 816 00:38:23,320 --> 00:38:27,320 is handwritten by the testator. The key legal battleground here 817 00:38:27,320 --> 00:38:30,920 is always how much has to be in the testator's handwriting. 818 00:38:31,400 --> 00:38:34,480 The modern trend, which you'll see in the Uniform Probate Code, 819 00:38:34,800 --> 00:38:38,160 only requires that the material provisions, basically who gets 820 00:38:38,160 --> 00:38:41,200 what and the signature are in the testator's own hand. 821 00:38:41,720 --> 00:38:44,880 And all of this brings us to the central conflict in the law of 822 00:38:44,880 --> 00:38:47,480 wills. On one side you have these very 823 00:38:47,480 --> 00:38:50,720 strict, rigid formal rules that are designed to be a shield 824 00:38:50,720 --> 00:38:53,840 against fraud, but on the other side you have the court's desire 825 00:38:53,840 --> 00:38:56,480 to actually carry out with a person who died clearly wanted. 826 00:38:57,080 --> 00:39:00,600 So what happens when a minor technical screw up stands in the 827 00:39:00,600 --> 00:39:03,560 way of obvious intent? The modern answer to that 828 00:39:03,560 --> 00:39:05,800 tension is the harmless error doctrine. 829 00:39:06,200 --> 00:39:09,200 This is a huge development. It gives a court the power to 830 00:39:09,200 --> 00:39:12,560 forgive a minor mistake in the execution, like maybe there's 831 00:39:12,560 --> 00:39:16,640 only one witness instead of two. But, and this is a big but, the 832 00:39:16,640 --> 00:39:20,040 person trying to probate the will has to prove by clear and 833 00:39:20,040 --> 00:39:23,760 convincing evidence that the decedent absolutely intended for 834 00:39:23,760 --> 00:39:27,120 that document to be their will. It's a powerful safety valve, 835 00:39:27,320 --> 00:39:29,320 but the burden of proof is very high. 836 00:39:29,920 --> 00:39:33,280 So we've created a will. Now let's talk about how to get 837 00:39:33,280 --> 00:39:35,560 rid of it. A will is what we call 838 00:39:35,560 --> 00:39:37,600 ambulatory. That just means it doesn't take 839 00:39:37,600 --> 00:39:40,400 effect until the moment of death, and so it can be changed 840 00:39:40,400 --> 00:39:42,880 or completely destroyed anytime before then. 841 00:39:43,520 --> 00:39:46,040 That process is called revocation, and just like 842 00:39:46,040 --> 00:39:49,120 execution, it has its own set of very specific rules. 843 00:39:49,480 --> 00:39:51,480 So how does a testator revoke a will? 844 00:39:51,800 --> 00:39:53,640 There are basically three ways to do it. 845 00:39:54,000 --> 00:39:56,640 The first is by a subsequent writing, making a new will. 846 00:39:57,000 --> 00:40:00,040 The second is by a physical act. You know, burning it, tearing 847 00:40:00,040 --> 00:40:03,040 it, shredding it. And the third is by operation of 848 00:40:03,040 --> 00:40:05,800 law, where certain big life events like a divorce can 849 00:40:05,800 --> 00:40:08,640 automatically change or even revoke parts of a will by 850 00:40:08,640 --> 00:40:11,920 statute. OK, the cleanest and most common 851 00:40:11,920 --> 00:40:14,640 way to revoke is just by making a new will. 852 00:40:14,920 --> 00:40:18,000 The new will can either say it out loud, I hereby revoke all 853 00:40:18,000 --> 00:40:21,680 prior wills, or it can revoke the old one by implication if 854 00:40:21,680 --> 00:40:24,600 the new plan is just completely inconsistent with the old one. 855 00:40:25,080 --> 00:40:28,440 Now a codicil which is just an amendment is also key here. 856 00:40:29,040 --> 00:40:32,080 When you execute a codicil, it's said to republish the original 857 00:40:32,080 --> 00:40:34,400 will. It basically re dates the whole 858 00:40:34,400 --> 00:40:37,000 thing to the date of that new amendment, which can have some 859 00:40:37,000 --> 00:40:40,040 major legal consequences. Now for a physical act of 860 00:40:40,040 --> 00:40:43,600 revocation to be valid, 2 things have to happen at the exact same 861 00:40:43,600 --> 00:40:45,680 time. First, you need a qualifying 862 00:40:45,680 --> 00:40:47,160 act. Burning, tearing, crossing 863 00:40:47,160 --> 00:40:48,840 things out, riding void across the front. 864 00:40:49,200 --> 00:40:52,560 Second, the testator has to have the simultaneous intent to 865 00:40:52,560 --> 00:40:54,880 revoke what we call animus revo candy. 866 00:40:55,240 --> 00:40:57,560 So if your will accidentally gets thrown in the fireplace, 867 00:40:57,560 --> 00:40:59,920 it's not revoked because you didn't have the intent. 868 00:41:00,240 --> 00:41:02,960 You need both the act and the intent at the same time. 869 00:41:03,480 --> 00:41:06,360 OK, this is a huge red flag issue for an exam. 870 00:41:06,640 --> 00:41:10,000 If a will was last seen in the testator's possession, but after 871 00:41:10,000 --> 00:41:13,000 they die it's nowhere to be found, the law creates a 872 00:41:13,000 --> 00:41:15,320 powerful presumption. The presumption is that the 873 00:41:15,320 --> 00:41:18,520 testator destroyed it on purpose, intending to revoke it. 874 00:41:18,760 --> 00:41:20,640 But this is a rebuttable presumption. 875 00:41:20,880 --> 00:41:23,600 The person who wants the will to be valid can overcome it with 876 00:41:23,600 --> 00:41:25,880 evidence that it was just accidentally lost or that 877 00:41:25,880 --> 00:41:28,640 somebody else destroyed it. Now we're getting into the 878 00:41:28,640 --> 00:41:32,120 really tricky stuff. Revoking a will isn't always the 879 00:41:32,120 --> 00:41:34,760 end of the story. There are certain doctrines that 880 00:41:34,760 --> 00:41:38,080 can actually bring a previously dead will back to life. 881 00:41:38,440 --> 00:41:41,440 Let's look at revival and dependent relative revocation. 882 00:41:42,040 --> 00:41:44,440 So here's the puzzle. A testator makes will one. 883 00:41:44,920 --> 00:41:47,800 A few years later they make will 2, which revokes will one. 884 00:41:48,280 --> 00:41:51,320 Then a few years after that they tear up will 2. 885 00:41:51,920 --> 00:41:54,560 The question is, is will one now back? 886 00:41:54,560 --> 00:41:56,760 In effect, jurisdictions are split. 887 00:41:57,160 --> 00:41:59,880 A small number say yes, it's automatically revived. 888 00:42:00,240 --> 00:42:03,120 Another small number say no, it's dead forever unless you re 889 00:42:03,120 --> 00:42:05,480 execute it. But the modern majority rule, 890 00:42:05,480 --> 00:42:08,400 the UPC approach, says we look at the testator's intent. 891 00:42:09,000 --> 00:42:11,240 If there's evidence they intended for will one to spring 892 00:42:11,240 --> 00:42:15,280 back to life, then it does. And then we have dependent 893 00:42:15,280 --> 00:42:20,120 relative revocation, or DRR. Think of this as the laws oops 894 00:42:20,120 --> 00:42:22,920 button for a very specific kind of mistake. 895 00:42:23,280 --> 00:42:26,240 The testator revokes their first will only because they 896 00:42:26,240 --> 00:42:30,040 mistakenly believe that their new will Will 2 is valid. 897 00:42:30,200 --> 00:42:32,360 But then it turns out Will 2 is defective. 898 00:42:32,360 --> 00:42:35,880 For some reason, DRR allows a court to just disregard the 899 00:42:35,880 --> 00:42:38,600 revocation of Will 1. The whole theory is that the 900 00:42:38,600 --> 00:42:41,360 revocation was dependent on the new plan working. 901 00:42:41,600 --> 00:42:44,680 Since the new plan failed, the court undoes the revocation to 902 00:42:44,680 --> 00:42:48,080 avoid intestacy, which is what the testator was trying to avoid 903 00:42:48,080 --> 00:42:51,480 in the 1st place. OK, that was a lot of doctrine. 904 00:42:51,480 --> 00:42:53,960 So how do you organize all of this under the pressure of an 905 00:42:53,960 --> 00:42:56,560 exam? The absolute key is having a 906 00:42:56,560 --> 00:42:59,520 systematic attack. Plan a checklist that you go 907 00:42:59,520 --> 00:43:02,120 through every single time so you don't miss anything. 908 00:43:02,600 --> 00:43:04,360 Follow this checklist every time. 909 00:43:04,600 --> 00:43:08,680 Number one, start with the mind capacity and intent #2 check the 910 00:43:08,680 --> 00:43:11,760 execution formalities. Is it a proper attested will or 911 00:43:11,760 --> 00:43:13,880 maybe a holographic will? Three. 912 00:43:13,960 --> 00:43:16,640 If the formalities fail, can harmless error save it? 913 00:43:17,040 --> 00:43:18,480 Four. Are there any interested 914 00:43:18,480 --> 00:43:21,640 witnesses? 5 Look for any revocations by 915 00:43:21,640 --> 00:43:25,320 writing, by physical act, or by law. 6 If there was a 916 00:43:25,320 --> 00:43:28,080 revocation, do you need to analyze revival or DRR? 917 00:43:28,440 --> 00:43:32,080 And then and only then, step 7, you conclude which document, if 918 00:43:32,080 --> 00:43:35,080 any, controls the estate. This framework will keep you on 919 00:43:35,080 --> 00:43:37,640 track. And that brings us right back to 920 00:43:37,640 --> 00:43:40,800 where we started, to the central question in this whole area of 921 00:43:40,800 --> 00:43:43,320 law. Are all these strict, formal 922 00:43:43,320 --> 00:43:46,000 rules a necessary shield to protect people and prevent 923 00:43:46,000 --> 00:43:49,600 fraud, or are they an outdated barrier that often gets in the 924 00:43:49,600 --> 00:43:51,800 way of a person's true, clear intent? 925 00:43:52,360 --> 00:43:55,560 As we've seen, the law is slowly moving towards prioritizing 926 00:43:55,560 --> 00:43:58,360 intent with things like the harmless error doctrine, but 927 00:43:58,360 --> 00:44:01,240 this fundamental tension is what shapes every single rule you'll 928 00:44:01,240 --> 00:44:01,960 be tested on.