OK, let's let's unpack this. Today we are stepping into a
world that feels incredibly personal, literally dealing with
a person's final wishes. You know, the last things they
ever get to say to the world. But it is governed by a set of
rules that can feel, well, surprisingly cold, technical and
at times, frankly, paranoid. Oh, absolutely paranoid.
Right. So in this deep dive, we are
talking about the creation, the alteration and the termination
of wills. The stakes are incredibly high
here. Unlike intestacy, which we've
touched on before as that sort of statutory fall back, the
government's best guess at where your stuff should go, a will is
different. Yeah, it's the deliberate formal
expression of intent. Exactly.
It is dead hand control. You are letting a dead person
control the living, and because of that, the law is incredibly
particular about how you actually do it.
And if you're listening to this and you're a law student or
maybe you are getting ready for the bar exam, you really need to
switch gears mentally right now. This is one of the most heavily
tested areas on finals and the bar for exactly that reason.
The courts are well, they're unforgiving.
They're just waiting for you to slip up.
They really are. In other areas of law, say
contracts or torts, you might get away with substantial
compliance, like getting close enough to the rule.
But in the traditional law of wills, recision is everything.
You miss a signature by an inch or you stand in the wrong spot
during the witnessing. Or use the wrong color ink.
OK, maybe not the ink color, but close.
If you mess up the formalities, the whole document might get
thrown out. Which brings us to the core
tension we are going to explore today.
It's a battle, really. On one hand you have the
individual's freedom of disposition, their right to give
their property to whoever they want, even if it's an
objectively terrible idea, and on the other hand you have the
legal systems desperate need for reliable evidence.
It's this constant clash between strict compliance with the rules
and the actual intent of the person who died.
That tension drives every single doctrine we are going to discuss
today. So here is our road map for the
analysis. We're going to start with the
mental prerequisites. What is going on inside the
testator's head before they even pick up a pen?
The invisible stuff. Exactly.
Then we will move to the physical formalities, the
writing, the signature, the witnesses, and the very specific
choreography required. After that, we'll look at the
curative doctrines, things like holographic wills and the
harmless error doctrine that try to save a defective will.
And finally, we will talk about how to kill a will.
Revocation. Yep, revocation and whether you
can bring it back to life with revival.
So it sounds like a journey from birth to death and then maybe
resurrection. Let's start at the beginning,
the mind before we even put pen to paper.
What does the law require of the person making the will?
We are talking about testamentary capacity and here
is the first thing you need to note for an exam.
And it actually surprises a lot of people.
The standard is deliberately set as a low threshold.
A low threshold. That's that's interesting.
I mean, I would have assumed that since we are giving away
everything we own, the standard would be super high.
Like you need to be sharp as a tack.
Far from it. The law actually wants to
respect the free disposition of property.
We want people to be able to give away their stuff, so the
capacity required to make a will is significantly lower than the
capacity required to, say, sign a contract.
OK, So what exactly does that low threshold look like in
practice? Well, to have capacity you need
to satisfy 4 distinct elements and you have to satisfy them at
the precise moment of execution. Let's break those four down.
What's #1. First, you must understand the
nature and extent of your property.
Now, be careful here on an exam. This doesn't mean you need to
know the exact dollar value of your stock portfolio down to the
cent. Or the precise legal description
of your land in the county registry.
Right. You just need a general
understanding of what you own. Like I have a house, a car and
some savings rather than, you know, I own the moon.
But hold on a second, you said general understanding.
If I'm an elderly billionaire, let's say I'm sitting on a
massive fortune and I forget about a $50,000 savings account
I opened in 1980. Does that mean I lack capacity?
I mean 50 grand is more money than most people see in a year.
That's a perfect example of where the low threshold saves
you. The courts generally rule that
nature and extent doesn't mean an audit for a billionaire for
getting $50,000 is just a rounding error.
It doesn't prove a degraded mind, it just proves a busy one.
That makes sense. But if a person with only
$50,000 to their name thinks they're a billionaire, that is a
capacity issue. It's about the alignment of your
mental reality with the objective reality.
If you have a delusion about your wealth, that's a problem.
A lapse in memory about a small detail.
Usually fine. OK, that distinction really
helps general awareness of assets.
What's the second element? Second, you must know the
natural objects of your bounty. Natural objects of your bounty?
That is a very fancy legal phrase.
Sound like something out of a pirate movie.
It sounds poetic, doesn't it? It basically just means The Who
you need to know who your close relatives are, your spouse, your
children, your parents. You need to know who would
naturally expect to inherit from you if you didn't have a will.
OK so as an exam trap, does that mean I have to leave them
something? Because I know plenty of people
who know exactly who their kids are and still want to leave
everything to their golden retriever.
No, and that is a crucial distinction to make.
You don't have to leave them a dime, you just have to know they
exist. If you actually think your son
is a stranger or you've forgotten you have a daughter
entirely, that's a capacity issue because your mind isn't
grasping reality. Right.
But if you know who they are, you know that is my son John,
and you simply decide John is a bum and I'm cutting him out,
That is your right. You can be mean, you just can't
be delusional. Got it.
Malice is legal, confusion is not.
So know your stuff, know your family.
What's #3. 3rd, you must understand the nature of the
testamentary act. You have to comprehend that
you're executing a will, that it disposes of your property after
you die, and crucially, that it is revocable until that time.
You have to know this isn't a deed giving the property away
today. Exactly.
Or a contract. You need to know that you are
performing a specific ritual that has legal consequences upon
your death. And the fourth element.
The 4th element is really just the glue that holds the other
three together. You must be able to formulate an
orderly plan of disposition. Meaning.
Meaning you have to be able to hold those first three elements
in your mind long enough to say, I want my house to go to X and
my car to go to Y. It's about cognitive processing
power. Can you connect the what the
property to The Who? The objects of bounty.
So it's a moment in time test that makes me wonder about
people with dementia or mental illness.
If someone has Alzheimer's or suffers from schizophrenia, are
they automatically disqualified from writing a will?
Absolutely not. And this brings us to a very
testable concept, the lucid interval doctrine.
Because capacity is an assessment made at the precise
moment of execution, literally the minutes you were signing the
document. A person who suffers from
chronic mental illness or delusions can still execute a
perfectly valid will. If they do it during a lucid
interval. Exactly.
That's a temporary period where the fog lifts, their mind is
clear, and they meet those 4 criteria we just discussed.
That's fascinating. So you could be completely
confused on Tuesday, have a moment of clarity on Wednesday
afternoon when you sign the will, and be confused again on
Thursday and the will stands. Correct, and generally the
burden of proof to show a lack of capacity rests on the person
contesting the will. The law presumes competence, so
if you want to challenge that will, you have to prove they
didn't have a lucid interval when they sign.
It's a very steep hill to climb. Now, I know there is a trap that
students fall into here regarding capacity is
specifically comparing it to other legal acts.
Let's flag that. Yes, the contract versus will
trap. Do not confuse testamentary
capacity with contractual capacity.
Contractual capacity is a significantly higher standard.
Think about why right to sign a contract to sell your house, for
example. You are entering an arm's length
transaction. You are dealing with someone who
has opposing interests. Right.
You need to understand the value, the market, the terms,
and you need to protect yourself from getting ripped off.
You're impacting your life right now.
So wait, you are saying I might be too mentally declined to sell
my like to sign a contract for the sale because I might get
cheated, but I could still be mentally capable of willing that
house to someone? Exactly.
You might lack the capacity to handle a business transaction
inter vivos during life because that requires high level
cognitive functioning to protect your assets, but simply giving
it away at death? That requires less mental
horsepower. I have a house.
I love my daughter. I want her to have it.
Right, that is a much simpler thought process than I am
selling this house for $400,000 subject to inspection and
financing contingencies. OK, so that's capacity.
The mind is capable, but just being capable isn't enough,
right? I can be capable and write a
letter to my lawyer saying I think I want to leave my boat to
Bob. Is that a will?
No, that brings us to testamentary intent.
Or in Latin and miss tostandi. This is the specific intent that
this specific writing is the final legal instrument.
So drafts don't count. Generally no.
If a document is titled draft or if it says I wish my son would
receive, which we call preparatory language.
Meaning it's just a wish or a hope.
It might not be a will. Because it lacks finality.
Right. The courts look at evidence.
If you can prove the testator intended that draft to be the
final word, it might pass. But usually a draft is just a
draft, and mere notes or instructions for my lawyer are
definitely not wills. And this intent has to exist
when. At the time of execution, you
cannot write a letter to your lawyer and then three years
later, say, you know what? I never got around to signing
the real will, but I really like that letter.
Let's just use that. A lawyer's memo cannot become a
will later just because the client liked it.
No, the intent must be present at the signing.
You have to mean this is it when you put the pen to the paper.
So we have the mine right? We are lucid, we have intent.
Now we have to actually do the thing.
We are moving into section two of our analysis, the formalities
of a tested wills. This is where the checklist come
out. But before we get into the
weeds, why do we make this so hard?
Why all the hoops? We call them the functions of
formalities. Legal scholars usually identify
3 or 4, but let's hit the big ones first.
The evidentiary function. We need reliable evidence of
intent. Because the main witness, the
testator, is dead, we can't ask them what they meant, so the
document has to speak for itself. 2nd is the cautionary or
ritual function. The ritual function that sounds
almost religious. It is in a secular way, the
ceremony of signee gathering witnesses, the formal language.
It impresses upon the testator. Hey, this is serious business.
It prevents casual or unthought out transfers.
It stops you from scribbling away your fortune on a napkin
while you're angry at dinner. Exactly.
It forces a pause and 3rd, the protective function.
It Shields the testator from fraud or undue influence by
having witnesses present. It's hard to hold a gun to
someone's head and force them to sign if there are two
independent witnesses standing there watching.
OK, so let's walk through those hoops.
Most wills are attested wills. What are the four big
requirements you need to spot on an exam?
Under the majority approach, you need 1A writing, 2A signature by
the testator, 3 at Test station by at least 2 witnesses and four
the witnesses must sign. Let's hit the writing first.
Does it have to be on parchment paper or strictly typed?
No. The medium is flexible paper, a
screen, the back of a napkin, as long as it's a permanent record.
I should briefly mention noncupative wills here, oral
wills. Noncupative sounds painful or
like something you need an ointment for.
It's mostly painful for the lawyers trying to enforce them.
They're largely invalid in most states today.
There are rare exceptions for soldiers and sailors in active
service or sometimes during a last sickness.
But for your exams, unless you see a soldier on a battlefield,
assume an oral will is a no go. It needs to be written.
Got it. Next up, the signature I have
terrible handwriting. Does have to be my full legal
name? What if I just scribble?
Not at all. The form is flexible, An ex.
A nickname, your initials. If you intended it to be your
signature, it counts. So if I sign Dad.
Dad works, The boss works. If that's what you go by, love
Mom works. The key is the intent to
authenticate the document. Now where do I sign?
This seems like a detail, but I have a feeling it matters on an
exam. It matters immensely.
We call this subscription. Historically, and in a minority
of states today, the signature must be at the very end of the
document. Subscribe right?
What happens if I sign in the middle?
Say I leave a few lines blank at the bottom.
In a strict subscription jurisdiction, it could
invalidate the whole will, or they might invalidate just the
text that appears after the signature.
Wow. Yeah, but in the majority of
states today, and under the uniform Probate Code, the UPC,
the location is flexible. Anywhere on the document is fine
as long as it was intended to authenticate the will.
But for practice, always sign at the end, OK?
What if I'm too weak to sign? Maybe I've had a stroke or I'm
physically paralyzed. Can I have you sign for me?
Yes, but we need to follow the proxy signature rule strictly.
It requires 2 things. First, it must be at the
testator's direction. You have to tell me to do it.
You can't just nod vaguely, you need to communicate the
instruction. And 2nd, it must be in the
testator's conscious presence. So I can't call you and say,
hey, go into my office and sign my will for me, No.
I have to be right there with you.
I can't take the will into the other room and sign your name.
I have to do it right there while you are aware of it.
That brings us to the witnesses, the audience for this
performance. Usually two people, right?
Universally, 2 competent adults and they have to observe
something specific. They must either see the
testator sign or hear the testator acknowledge the
signature. So if I signed it privately an
hour ago, I can bring it to you and say this is my signature,
please witness it. That works.
It works perfectly. Now here is where it gets really
interesting, and where I think the law gets a little sci-fi.
But presence tests. This is a huge exam topic,
isn't? It huge a frequent fact pattern.
The witnesses usually have to sign in the testator's presence.
But what does presence actually mean?
We have two competing tests and the difference is dramatic.
Let's start with the old school one, the line of sight test.
This is the traditional strict test derived from English common
law. The testator must be physically
capable of seeing the witnesses sign if they were to look
without having to change their position.
If they were to look so I don't actually have to stare at their
pen. You don't have to laser focus on
them, but, and this is the key, you must be physically capable
of seeing them without changing your position.
Let me give you the classic Horror Story scenario.
You are an elderly man in a hospital bed.
You are weak. You can't turn your head easily.
You sign your will. The two nurses, your witnesses,
take the will to a chest of drawers against the wall to find
it because they need a flat surface.
OK, standard hospital room stuff.
But the chest of drawers is slightly behind your head, or
maybe there is a privacy curtain drawn halfway, or maybe they
step just outside the door frame to use the counter in the hall.
If you, lying in that bed cannot draw a straight, uninterrupted
visual line to the pen hitting the paper, the witnessing is
invalid. Even if I hear them, even if I'm
talking to them like, hey, thanks for signing that guys.
Doesn't matter. In a strict line of sight
jurisdiction, that will is void. The court argues that if you
can't see them, they could be switching the documents.
They could be signing a grocery list instead of your will.
That seems incredibly paranoid and frankly, outdated.
That feels like a rule from 1600s England.
It is exactly a rule from 1600s England, and that's why the
modern trend and the rule adopted by the UPC is the
Conscious Presence Test. This sounds more reasonable.
It is under conscious presence. We don't care about geometry or
laser beams. We ask did the testator, through
sight, hearing or general awareness, comprehend that the
witness was in the act of signing?
So in my hospital bed scenario. In the hospital scenario, you
are fine. You hear the nurses, you know
what they are doing, you ask them to do it.
That's conscious presence. This test is vital for, say, a
blind testator under strict line of sight.
A blind person theoretically couldn't execute a will because
they can't see the witnesses. Conscious Presence fixes that.
So if you are a law student staring at a fact pattern, you
need to check the jurisdiction immediately.
First thing you do, if the prompt says state X follows the
common law, get out your ruler and protractor, you're looking
for block lines of sight. If it says UPC jurisdiction,
you're looking for general awareness.
OK, let's talk about who these witnesses are.
We are moving into Section 3, the intended witness problem.
This is the classic movie trope. The creepy Butler witnesses the
will and oh look, the Butler gets $1,000,000 or the lawyer
writes himself into the will. Right.
An interested witness is one who stands to receive a financial
benefit under the will. The law is naturally suspicious
of this because of the risk of fraud or undue influence.
If I'm getting paid to sign, I might be less likely to report
that you were drunk or coerced when you signed it.
So if a beneficiary signs as a witness, is the will dead?
At common law, the old obsolete rule, yes, the entire will was
void in Toto. The whole thing collapsed.
Wow, nuclear option. Exactly.
Imagine invalidating A multimillion dollar estate plan
because the son who's getting $500 was one of the witnesses.
It was too harsh, so the modern rule which most states follow is
the purging doctrine. Purging sounds ominous.
It's a compromise. Under this rule, the will itself
remains valid. We don't throw out the
testator's intent for the whole estate.
Instead, we just purge or void the gift to the Witness.
So the Butler signs the will is valid, but the Butler gets
nothing. Usually, yes.
The idea is to remove the incentive for fraud.
If you can't profit from witnessing, you have no reason
to lie. But there are exceptions.
You need to know how a witness can keep their gift on an exam.
Give me the exceptions. 1st the supernumerary exception and it
basically means extra if there were enough disinterested
witnesses. The interested 1 is just extra.
So if the state requires 2 witnesses and you had three, two
strangers and the Butler, the Butler is supernumerary.
His signature wasn't needed to validate the will because the
two strangers covered the requirement, so he keeps his
gift. That makes sense.
No harm, no foul. What if he was one of only two?
Then you look for the intestacy or excess rule.
This is a bit of math, so it's slow down if the witness would
have inherited from the testator anyway under the laws of
intestacy. Say the witness is the
testator's daughter. She doesn't lose everything.
Because she was going to get money regardless of the will.
Right, but we don't want her to profit from her own witnessing,
so she takes the lesser of the bequest in the will or her
intestate share. Let's do a quick example.
This is where I usually get lost.
OK, visualize a pie with $100,000.
Testator dies leaving a will giving that entire $100,000 pie
to his daughter. The daughter is also a witness.
OK, daughter gets 100K in the will.
She witnessed it. Now let's look at what would
happen if the will failed. If there was no will in test to
see, let's say she would only get a small slice $20,000.
So the will gave her a massive raise from 20K to 100K.
Exactly. The purging statute says you
don't get the profit from your crime.
You can't use your signature to upgrade from the 20 K slice to
the 100K pie. So we cap her, she gets the 20
K. The remaining 80K that goes to
the other heirs or into the residue.
She essentially witnessed herself out of an $80,000
profit. That is a crucial distinction.
Now flip it. What if the will gave her less
than intestacy? Say the will gave her 10,000,
but intestacy would have given her 20,000.
In that case she takes the 10,000, she takes the lesser
amount. The rule is basically you can
never come out ahead by witnessing the will.
OK, before we leave formalities, what is a self proving
affidavit? It sounds like something that
solves all our procedural problems.
It solves procedural problems, yes.
Yeah, It's a notarized statement signed by the testator and
witnesses, usually attached to the back of the will.
It says we swear we did this right.
We were here, he was sober. We signed.
And its function. Efficiency.
It allows the will to be admitted to probate without
dragging the witnesses into court 20 years later to testify.
It substitutes for live testimony.
If you don't have this, the executor has to track down the
witnesses who might be dead or move to Florida and get them
into court. But there is a trap here for
students, right? Yes, a self proving affidavit
cannot cure a defect in the execution itself.
This is a classic exam trick. The fact pattern will show a
will where the witnesses didn't see the testator sign a presence
violation, but then they all sign a notarized affidavit
saying we did it right. And students think, oh, the
affidavit fixes it. It does not.
An affidavit that swears to a lie doesn't make the lie true.
It only proves the signatures were made.
It doesn't validate A void process.
OK, we have covered the strict rules, but sometimes people
don't follow the rules. They write wills on tractor
fenders, which I've heard actually happened, or just
scribble something on a notepad. Section 4 Alternatives to strict
formalities. Let's talk about holographic
wills. Yes, the tractor Fender case is
a law school legend. A farmer was pinned under his
tractor, dying, and scratched his will into the paint of the
Fender with his pocket. Nice.
The court accepted it. That is a holographic will, a
will that is handwritten and signed by the testator,
typically without any witnesses. No witnesses at all.
None but half the states recognize these.
The theory is that if it is in your own handwriting, that is a
pretty good guarantee against forgery.
It's hard to forge an entire page of someone's handwriting
convincingly. But how much has to be in
handwriting? Can I fill out a pre printed
form? That is the big debate in strict
old school jurisdictions. It must be entirely in the
testator's handwriting. If you use hotel stationary that
has Marriott printed at the top or a will form you bought at a
store, some old courts might have thrown it out because it
contained printed matter. That seems extreme.
The Marriott logo invalidates my will.
It was extreme. That's why the UPC and modern
trend apply the material provisions rule.
Only the important stuff, the gift, the beneficiaries, the
signature needs to be handwritten.
You can use a pre printed form with blanks and as long as you
fill in the blanks by hand like I give my house to Bob, it's
valid. And what about intent?
A handwritten note can look like a diary entry.
Just saying. I think I'll give the card to
Bob. Yes, extrinsic evidence is
admissible here to prove animus test Andy intent.
If the note is ambiguous, the court will look at the
circumstances. Did you keep it in your safe
deposit box? Did you tell people I wrote my
will or was it found in the trash?
Now for the exam distinction, if I have a holographic will, do I
need to worry about line of sight or presence?
No, that is the trap. Do not apply attested will
formalities to holographic wills if it's a valid holograph.
Doesn't need witnesses, so it doesn't need presence.
Don't waste time analyzing line of sight on a document that has
no witnesses. All right, but what if I screw
up everything I try to do in a tested?
Will I mess up the witnesses? I try a holographic?
Will I type it out so it fails that rule too?
Is it game over or is there a savior?
Enter the revolutionary approach, the harmless error
doctrine. This is found in UPC section
2-503. I love that we call a probate
rule revolutionary. It sounds like we are storming
the best deal. In the legal world, it is.
For centuries, strict compliance was king.
If you missed a rule, you failed.
The harmless error doctrine changes the game.
It is a dispensing power. It says even if you messed up
the statutory formalities, maybe you only had one witness or the
witnesses forgot to sign, the document can still be valid.
But there has to be a catch. There is.
You need clear and convincing evidence of the decedent's
intent. That is a very high burden of
proof, higher than the usual preponderance of the evidence.
You have to really prove that the testator intended this
specific document to be their will.
So on an exam, if I see a defective will.
Analyze it twice. This is the pro tip.
First analyze it under strict compliance.
Tell the grader the will fails because the witness left the
room and broke the line of sight.
Then pivot, say. However, if this jurisdiction
applies the harmless error doctrine, the will might be
saved if the proponent can show clear and convincing evidence of
intent. That is top tier advice.
It shows you know both the rule and the exception.
OK, we have built the will. We've saved it from errors.
Now let's destroy it. Section 5 revocation.
A will is ambulatory, right? It walks around with you until
you die. Correct.
It is revocable until the moment of death.
You can wake up every morning and write a new will if you
want, and there are three main ways to kill a will.
Method one. Subsequent rating.
You write a new will. You can revoke the old one
expressly. I hereby revoke all prior wills.
That is the first sentence of almost every professionally
drafted will by inconsistency. If will 2 gives your entire
state to your sister, and will one gave it to your brother,
will 2 revokes will one by implication because they can't
both stand. You can't give everything to two
different. People, what if Will 2 only
gives away my car but leaves the rest of Will 1 alone?
Then it's a partial revocation. Will 2 is likely a codicil, A
supplement. The courts will read them
together. Will 1 still controls the house
and the bank account. Will 2 controls the car.
They coexist. OK, method 2 is the dramatic
one. Physical act.
This is the fireplace scene. Fire, tearing.
Shredding, obliterating. But you need two things, the act
and the intent. Animus Rivacondi.
So let's play with this if my house burns down and my will is
inside. Not revoked.
That's an accident. You didn't intend to burn the
will, the fire did. If you can prove the contents of
the will, maybe with a photocopy, you can still
probate. It OK flip it if I intend to
revoke it and I throw it toward the fire but it misses and lands
on the rug and doesn't burn. Not revoked.
If you had intent but no act, the document is still physically
intact. You need both the destruction
and the intent happening at the same time.
Can I have someone else tear it up for me?
Only if it is at your direction and in your presence.
Same rules as the proxy signature.
If you call your lawyer and say I'm angry at my kids, tear up my
will and she hangs up and runs it through the shredder.
Invalid revocation. Correct, not in your presence.
The will is technically still valid even though it's confetti
in a bin. That's a massive mess to
litigate, but legally the revocation failed.
Now there is a presumption here that scares people.
The lost will presumption. Yes, this is crucial.
If a will was last known to be in the testator's possession,
like you took it home from the lawyer's office, but we can't
find it after you die, the law presumes you destroyed it with
the intent to revoke it. So if I just lose it in a pile
of magazines or my cat knocks it behind the radiator, the court
assumes I tore it up, Yes. It's a rebuttable presumption,
meaning your heirs can try to prove it was lost or stolen, but
it's a hard presumption to overcome.
The lesson? Keep your will in a safe place
or leave it with the lawyer. Method three.
Operation of law. Things that happen automatically
without you touching the paper. Divorce is the big one in most
states. Divorce automatically revokes
any provision for the ex-spouse. We treat the ex spouses if they
predeceased the testator. Harsh but fair.
I assume most people don't want to leave their estate to their
ex. What about new people, omitted
spouses or children? If you get married after writing
your will or have a kid after writing your role, the law
generally assumes you didn't mean to cut them out.
You just haven't updated the paperwork.
You were busy having a baby, not calling your lawyer.
So the omitted spouse or pretermitted air statutes
usually give them an intestate share.
It forces the will to open up and let them in.
OK, we are in the final stretch. We have created wills, we have
revoked them, but can we bring them back?
Section 6 revival. The revival problem here is the
sequence and you need to track this for exams.
You write will one, you write will too, which revokes will
one. Then later you decide you hate
will too, so you revoke will too.
Is will one back? It feels like it should be.
I got rid of the replacement, so the original should stand.
That is the assumption of the automatic revival minority rule,
but it's not universal. Some courts say no.
What are the other approaches? Another minority approach often
called the anti revival approach says no revival absent re
execution. Will one is dead.
You killed it with will too. Killing will too doesn't bring
will one back to life. If you want will one back, you
have to sign it again with witnesses.
And the UPC or modern trend? It depends on the testator's
intent. We look at the evidence.
Did you revoke will too? Thinking would come back.
Did you say I'm tearing this up so the old one works?
If yes, the court revives it. That leads us to one of the most
complex doctrines in this entire field.
It sounds like a medical Condition Dependent Relative
Revocation, or DRR. This is the equitable safety
net. DRR is a doctrine of presumed
intent. It disregards revocation if that
revocation was based on mistake of law or fact.
Breakdown the classic scenario for us because the dependent
relative revocation is a mouthful, OK.
Think of it as a conditional revocation.
Testator has will one. They want to make a change, so
they write will 2 and Tareq will one, but will two turns out to
be invalid. Maybe they only had one witness.
So Will 2 is a dud, but will one is torn up so now they have no
will. Without DRR, yes they die
intestate. But the court looks at this and
says wait, the testator only tore up Will One because they
thought Will 2 was valid. The revocation was dependent on
the mistake. So the court unrevokes will one.
Exactly. We pretend the tearing ever
happened. Why?
Because the court assumes the testator would prefer the old
will one over intestacy. That is a crucial point.
DRR only works if Will 1 is better than intestacy, right?
If will One gave everything to a stranger and intestacy gives it
to the testator's children who the testator loves, the court
won't apply DRR. It's an equitable doctrine.
It's about getting as close to the testators likely intent as
possible. If reviving the old will gets as
closer to what they wanted an intestacy does we revive it.
If it doesn't, we leave it dead. Finally, let's touch on Section
7 codicils and the exam framework.
A codicil is just an amendment right.
Yes, but remember it requires the same formalities as a will.
You can't just scribble in the margins of your typed will.
That is not a valid codicil. That is usually an attempted and
failed holographic change. If you want to change your will,
you basically have to execute a mini will with witnesses.
And republication by Codicil. This means a valid codicil
redates the original will to the date of the codicil.
This can cure defects if you were drunk and lacked capacity
when you sign the will in 2020. But we're sober and capable when
you sign the Codicil in 2024, the Codicil republishes the will
and validates it as of 2024. It wipes the slate clean.
OK, that is a ton of information.
Let's create a quick checklist for the Lister to take into the
exam room. When you stare at a fact
pattern, what is the order of operations?
Whenever you see a Wells problem go in this order memorize this
framework. One capacity and intent was the
mind right? Look for age, mental state and
intent 2 formalities Did they meet the strict writing
signature and witness rules. Analyze line of sight versus
conscious presence. Check the jurisdiction.
Always 3 Harmless error If they failed formalities.
Can we save it? Look for clear and convincing
evidence. 4 interested witnesses.
Do we need to purge a gift? Do the math.
Watch out for the lesser of rule.
Yep, 5 revocation. Did they kill the will by
writing act or law? Check for the lost will
presumption and six revival and DRR is a dead will coming back
to life. Look for the mistake that caused
the revocation. Boom, that is the road map.
If you follow that structure, you won't get lost in the weeds.
As we wrap up, what's the big take away here?
We've seen strict rules and flexible exceptions.
It feels a bit schizophrenic. The take away is the balance.
The law is trying to do 2 contradictory things.
Protect the testator from fraud by demanding strict formalities,
but also protected testators intent from being defeated by
technicalities. That is why we have the rigid
witness presence rules sitting right next to the forgiving
harmless error doctrine. We are constantly oscillating
between follow the rules and do what they wanted.
It is a bit ambivalent, isn't it?
We make it incredibly hard to give away property, yet we work
so hard to save defective wolves.
It is, and here is a thought to leave you with Why do we care so
much? The person is dead?
Why do we spend millions of dollars in court fights to
figure out if they meant conscious presence or line of
sight? It's because in the end, the
last will and testament is the final exertion of human ego.
It's the last time you get to speak to the world, and the law
in all its complexity is just trying to make sure we hear you
correctly. That is a powerful thought.
Your voice echoes even when you were gone if you followed the
rules. Thanks for diving deep with us.
Use that checklist on your next practice problem.
Good luck out there. See you next time.
All right, let's dive into the life cycle of a will.
We're going to cover its creation, its potential
destruction, and everything in between.
Now, this is a big one. It's one of the most heavily
tested topics on any bar exam, and for good reason.
In this corner of the law, the details matter.
Courts are incredibly strict, and one tiny mistake can change
everything. Our job today is to make sure
you have a rock solid clinical mastery of these rules.
I mean, think about that. It sounds almost ridiculous,
right? A witness signs in the hallway
instead of the bedroom, and suddenly an entire will could be
invalid. But the law of wills is built on
this foundation of really strict formal rules.
And they're not there just to be difficult.
They exist to prevent fraud and to protect the person making the
will, the testator. So we're going to break down
these rules, see exactly why they matter, and understand how
one small misstep can completely unravel someone's final wishes.
So where do we start our analysis?
Well, not with a piece of paper. We start inside the mind of the
testator. Before a single word gets
written, 2 crucial mental states have to be present.
They need to have capacity and they need to have intent.
If you don't have both of these, even the most perfectly written
lawyer approved document is basically worthless.
OK, So what does it mean to have capacity to make a will?
The law breaks it down into this four part test and honestly it's
a pretty low bar. But it has to be met right at
the moment the will is signed. The testator has to understand
one, what they own, two, who their family is, the natural
objects of their bounty, 3 that they're making a will, and 4:00
they have to be able to put it all together in some kind of
coherent plan. Now, a key exam tip here is the
idea of a lucid interval. Even someone with dementia can
execute a valid will if they have a moment of clarity and
meet these four elements. And here is a classic exam trap.
Do not confuse the capacity to make a will with the capacity to
sign a contract. As you can see, the standard for
a will is much, much lower. Someone could be found legally
incapable of entering a complex business deal, but at the same
time be perfectly capable of deciding who gets their house.
It's a critical distinction to keep straight in your head.
So capacity is step one. But that's not enough.
The testator also has to have what we call animus testandi
testamentary intent. This is crucial.
It means they must intend for this specific document they are
signing to be their final will, Not just some notes, not a
practice draft for their lawyer, but the real deal.
And that intent has to be there right at the moment of signing.
OK, we've handled the mental state.
Now we move on to the physical part, the execution ceremony
itself. You should think of this as a
formal, almost ritualized process.
These rules, these formalities, they have three main jobs.
They create solid evidence for a court.
They serve as a cautionary function, reminding the testator
this is a serious act and they protect the testator from fraud
or being pressured. So for a standard attested will,
there are 4 core requirements, and courts traditionally demand
strict literal compliance. One, it has to be in writing.
Two, it has to be signed by the testator and pretty much any
mark they intended to be their signature counts. 3, it needs to
be witnessed by at least two credible adult witnesses, and
four, those witnesses also have to sign the will.
If you miss any one of these steps under the traditional
view, the will is toast. Now let's drill down on a tricky
detail. What does it actually mean for
the witnesses to sign in the testator's presence?
Well, jurisdictions are split on this.
The old school traditional rule is the line of sight test.
It's purely physical. Could the testator have
literally seen the witnesses pen hit the paper if they had just
looked? But the modern view, the
conscious presence test, is more flexible.
It asks if the testator was aware through sight, sound or
just general consciousness that the signing was taking place.
This is a huge issue to spot and analyse on an exam, so that's
how it's supposed to work in a perfect world.
But of course, things go wrong all the time.
So what happens when there's a flaw in the ceremony?
The law has come up with several doctrines to deal with these
common problems. Sometimes they can save a will
that would otherwise fail. Here's a classic problem.
What if one of the witnesses is also a beneficiary in the will?
The old common law rule was brutal.
It just voided the entire will. But the modern rule is much
smarter. It says the will itself is still
valid, but we're going to purge or avoid the gift to that
interested witness. It removes their financial
incentive to lie about the execution.
But there's an exception to the purge rule.
If that witness was an heir who would have inherited anyway,
they get to take the lesser of what the will gives them or what
their state share would have been.
Now, about half the states recognize a huge exception to
the witness requirement. These are called holographic
wills. A holographic will is one that
is handwritten by the testator. The key legal battleground here
is always how much has to be in the testator's handwriting.
The modern trend, which you'll see in the Uniform Probate Code,
only requires that the material provisions, basically who gets
what and the signature are in the testator's own hand.
And all of this brings us to the central conflict in the law of
wills. On one side you have these very
strict, rigid formal rules that are designed to be a shield
against fraud, but on the other side you have the court's desire
to actually carry out with a person who died clearly wanted.
So what happens when a minor technical screw up stands in the
way of obvious intent? The modern answer to that
tension is the harmless error doctrine.
This is a huge development. It gives a court the power to
forgive a minor mistake in the execution, like maybe there's
only one witness instead of two. But, and this is a big but, the
person trying to probate the will has to prove by clear and
convincing evidence that the decedent absolutely intended for
that document to be their will. It's a powerful safety valve,
but the burden of proof is very high.
So we've created a will. Now let's talk about how to get
rid of it. A will is what we call
ambulatory. That just means it doesn't take
effect until the moment of death, and so it can be changed
or completely destroyed anytime before then.
That process is called revocation, and just like
execution, it has its own set of very specific rules.
So how does a testator revoke a will?
There are basically three ways to do it.
The first is by a subsequent writing, making a new will.
The second is by a physical act. You know, burning it, tearing
it, shredding it. And the third is by operation of
law, where certain big life events like a divorce can
automatically change or even revoke parts of a will by
statute. OK, the cleanest and most common
way to revoke is just by making a new will.
The new will can either say it out loud, I hereby revoke all
prior wills, or it can revoke the old one by implication if
the new plan is just completely inconsistent with the old one.
Now a codicil which is just an amendment is also key here.
When you execute a codicil, it's said to republish the original
will. It basically re dates the whole
thing to the date of that new amendment, which can have some
major legal consequences. Now for a physical act of
revocation to be valid, 2 things have to happen at the exact same
time. First, you need a qualifying
act. Burning, tearing, crossing
things out, riding void across the front.
Second, the testator has to have the simultaneous intent to
revoke what we call animus revo candy.
So if your will accidentally gets thrown in the fireplace,
it's not revoked because you didn't have the intent.
You need both the act and the intent at the same time.
OK, this is a huge red flag issue for an exam.
If a will was last seen in the testator's possession, but after
they die it's nowhere to be found, the law creates a
powerful presumption. The presumption is that the
testator destroyed it on purpose, intending to revoke it.
But this is a rebuttable presumption.
The person who wants the will to be valid can overcome it with
evidence that it was just accidentally lost or that
somebody else destroyed it. Now we're getting into the
really tricky stuff. Revoking a will isn't always the
end of the story. There are certain doctrines that
can actually bring a previously dead will back to life.
Let's look at revival and dependent relative revocation.
So here's the puzzle. A testator makes will one.
A few years later they make will 2, which revokes will one.
Then a few years after that they tear up will 2.
The question is, is will one now back?
In effect, jurisdictions are split.
A small number say yes, it's automatically revived.
Another small number say no, it's dead forever unless you re
execute it. But the modern majority rule,
the UPC approach, says we look at the testator's intent.
If there's evidence they intended for will one to spring
back to life, then it does. And then we have dependent
relative revocation, or DRR. Think of this as the laws oops
button for a very specific kind of mistake.
The testator revokes their first will only because they
mistakenly believe that their new will Will 2 is valid.
But then it turns out Will 2 is defective.
For some reason, DRR allows a court to just disregard the
revocation of Will 1. The whole theory is that the
revocation was dependent on the new plan working.
Since the new plan failed, the court undoes the revocation to
avoid intestacy, which is what the testator was trying to avoid
in the 1st place. OK, that was a lot of doctrine.
So how do you organize all of this under the pressure of an
exam? The absolute key is having a
systematic attack. Plan a checklist that you go
through every single time so you don't miss anything.
Follow this checklist every time.
Number one, start with the mind capacity and intent #2 check the
execution formalities. Is it a proper attested will or
maybe a holographic will? Three.
If the formalities fail, can harmless error save it?
Four. Are there any interested
witnesses? 5 Look for any revocations by
writing, by physical act, or by law. 6 If there was a
revocation, do you need to analyze revival or DRR?
And then and only then, step 7, you conclude which document, if
any, controls the estate. This framework will keep you on
track. And that brings us right back to
where we started, to the central question in this whole area of
law. Are all these strict, formal
rules a necessary shield to protect people and prevent
fraud, or are they an outdated barrier that often gets in the
way of a person's true, clear intent?
As we've seen, the law is slowly moving towards prioritizing
intent with things like the harmless error doctrine, but
this fundamental tension is what shapes every single rule you'll
be tested on.