Statutory Requirements for a Valid Written Will
There are four main requirements to the formation of a valid will:
The will must have been executed with testamentary intent;
- The testator must have had testamentary capacity:
- The will must have been executed free of fraud, duress, undue influence or mistake; and
- The will must have been duly executed through a proper ceremony.
Testamentary intent involves the testator having subjectively intended that the document in question constitute his or her will at the time it was executed. Ordinarily, the opening recital, e.g., I, Jane Doe, do hereby declare this instrument to be my Last Will and Testament . . .” will suffice.
In addition to testamentary intent, the testator must have the testamentary capacity, at the time the will is executed. Generally, it takes less capacity to make a will than to do any other legal act. As guidance, a four-prong test is often used. The testator must:
- Know the nature of the act (of making a will)
- Know the “natural objects of his bounty”
- Know the nature and extent of his property
- Understand the disposition of the assets called for by the will.
See, e.g., Estate of Bullock, 140 Cal. App. 2d 944 (1956); Pace v. Richmond, 343 S.E.2d 59 (Va. 1986). A common modification to the above list of requirements is that the testator be of “sound mind” and capable of executing a valid will.
Accompanying the competency standard is a minimum age requirement, which is usually age 18. See Cal. Prob. Code § 6100; Idaho Code § 15-2-501; Utah Code § 75-2-501.
EXAMPLE: Robert was 79-years-old when he decided to prepare his will. He had been under the care of a doctor for dementia and needed 24-hour care. His son, Rodney, insisted that he prepare a will and called a friend of his, who is an attorney, to prepare one for his father. In the will, all the property was left to Rodney, to the exclusion of his other siblings. Given Robert’s mental state, it is unlikely that he possessed the competency needed to prepare a will. As such, if this instrument were submitted for probate, the court undoubtedly would reject it.
Most courts take a liberal view as to what constitutes a testator’s signature. These standards range from the testator’s first name, nickname or even an “X” by an illiterate person. See, e.g., Ferguson v. Ferguson, 47 S.E.2d 346 (Va. 1948).
The key is that the mark must be intended to be the testator’s signature and is made willingly by the testator. Even if the testator needs assistance in signing his name due to some infirmity, it still meets the signature requirement, as long as the testator desired and intended to sign the instrument. See, e.g., In re Will of Bernatowicz, 233 A.D.2d 838 (1996). Additionally, proxy signatures (made by another person) are acceptable, as long as the signing is at the testator’s direction and in his or her presence. See Cal.r Prob. Code § 6110(b).
EXAMPLE: Chester decided to prepare his will a few weeks before he was to have surgery for prostate cancer. Chester’s will leaves all his property to his nephew, Alan, who was the son of his late favorite sister, Wilma. He purposely wanted to exclude his brother, Harry, and his family from the will because they never got along. Chester had some complications from the surgery and ended up in a coma. While in that state, Harry came to visit and assisted Chester is signing a will that left everything to Harry. Shortly thereafter, Chester died and Harry tried to probate this will. In order for the testator’s signature to be valid, it has to be done as a volitional act by the testator. Although someone can assist the testator in this task, the signing must still be at the testator’s direction. Here, Chester was in a coma so he did not voluntarily sign the will. As such, the will is not valid. See, e.g., In re Sheehan’s Will, 51 A.D.2d 645 (1976).
In most states, there is no requirement that the testator sign at the end of the will (subscribe his signature). The signature can appear anywhere, provided it was intended by the testator to be his signature. See, e.g., Potter v. Richardson, 230 S.W.2d 672 (Mo. 1952); In re Estate of Carroll, 548 N.E.2d 650 (Ill. 1989).
EXAMPLE: Tyrone purchased a preprinted will to use as his will. At the beginning where it says “Last Will and Testament of __________” he signed his name. He filled in the rest of the form with his bequests and named an executor. When Tyrone died, the will was considered valid because he had signed somewhere on the instrument, although it was in the beginning rather than the end.
In many jurisdictions, the signature must be at the end of the will to be valid. In these jurisdictions, even deciding where “the end” of the will is can create uncertainty. Some jurisdictions apply an objective test requiring the testator to sign at the physical end (or last line) of the document.
EXAMPLE: Proley writes her will by filling in the blanks on a printed form. The form calls for the testator’s signature at the bottom of the first page. The two witnesses sign there, but Proley does not. Instead, pursuant to the form’s instructions, Proley folds the sheet in thirds so that the middle third of the back side becomes the document’s spine, which says “Will of _________.” Proley signs on that line. The will is denied probate because it was not signed at the sequential end. See In re Proley’s Estate, 422 A.2d 136 (Pa. 1980).
In contrast, some jurisdictions say that what constitutes the “end” is a subjective test, holding that the logical or literary end is the appropriate place for the signature. Here, the question is whether the testator subjectively thought that he was signing at the end of the will.
EXAMPLE: Proley writes her will by filling in the blanks on a printed form. The form calls for the testator’s signature at the bottom of the first page. The two witnesses sign there, but Proley does not. Instead, pursuant to the form’s instructions, Proley folds the sheet in thirds so that the middle third of the back side becomes the document’s spine, which says “Will of _________.” Proley signs on that line. Under the subjective test, Proley thought she was signing at the end of the will. As such, the signature is valid and the will can be probated.
Signing anywhere can create confusion as to the effect of provisions that may appear after the testator’s signature. Historically, if there were material provisions appearing after the testator’s signature, the entire will was void. See, e.g., In re Winter’s Will, 302 N.Y. 666 (1951) (later overturned by N.Y. Est. Powers & Trusts Lawr § 3-2.1(a)(1)(A)).
The modern view is that everything appearing before the signature is given effect; but the provisions that follow the signature are void (even assuming they existed at the time the will was made). An exception to this view is if the provisions following the signature are so material that deleting them would subvert the testator’s testamentary plan. In such a case, the entire will is void. See N.Y. Est. Powers & Trust Law § 3-2.1(a)(1)(A). If the provisions were added after the will’s execution, they are, of course, disregarded in all jurisdictions.
Witnesses—attestation versus self-proving affidavit
In addition to the testator signing the will, it also has to be signed by witnesses. Like the testator, the witnesses must possess certain minimal qualifications or their attestations may be legally insufficient to validate the will. Specifically, the witnesses must be competent—they must be mature enough and of sufficient mental capacity to understand and appreciate the nature of the act that they are witnessing and attesting to, so that, if needed, the witnesses could testify in court on these matters. See, e.g., In re Estate of Edwards, 520 S.2d 1370 (Miss. 1988).
A witness usually is judged incompetent to serve as a witness to the will if the person is also an interested witness. An interested witness is one who is a beneficiary under the will. At common law, the will was denied probate in those instances. Today, most jurisdictions have “purging” statutes that delete the gift to the interested witness so that the will is not denied probate.
EXAMPLE: Eugene, who is single, executed a will that makes gifts to his sister, Suzanne, and his neighbor, Bonnie. Bonnie is one of the attesting witnesses. The purging statute applies to eliminate Bonnie’s gift because she was an attesting witness to a will that made a beneficial gift to her.
Some states require that the testator sign the will in the presence of the witnesses. Most states require only an acknowledgement to the witnesses by the testator that his signature appears on the document. See, e.g., In re Levine’s Will, 2 N.Y.2d 757 (1956).
Most courts are indifferent about whether the attesting witnesses or the testator signs first. Of primary importance is that the execution ceremony is part of a single, continuous transaction. See, e.g., Waldrep v. Goodwin, 195 S.E.2d 432 (Ga. 1973).
What constitutes signing in someone’s “presence” also has differing interpretations. Most jurisdictions define presence as the testator being conscious of where the witnesses were and what they were doing when they signed.
EXAMPLE: Georgia signs her will while lying in a hospital bed. A vinyl screen separates her from the doorway where the witnesses are standing, which is 12 feet away. A nurse takes the will around the screen to the witnesses where they sign. Since Georgia was conscious of where the witnesses were and of what they were doing, the witnesses signed in her presence even though they were not in her line of sight. See, e.g., Nicholsr v. Rowan, 422 S.W. 21 (Tex. 1967).
Other jurisdictions dictate that the presence test is only satisfied if the witnesses are in the testator’s line of sight when they signed.
EXAMPLE: Tyler signs his will in a hospital bed, and then lies down on his back. The two witnesses take the will into the hallway, where they sign it. If Tyler could have seen the witnesses through the doorway had he looked, they signed in his presence. See, e.g., Newton v. Palmour, 266 S.E.2d 208 (Ga. 1980). Conversely, if Tyler’s line of sight was interrupted by the wall, the witnesses did not sign in his presence and probate will be denied.
Generally, there is no “publication” requirement (i.e., there is no requirement that the witnesses know they are attesting witnesses to a will) in most states. Others require that the testator publish (i.e., declare) to the attesting witnesses that the instrument is a will. See, e.g., Cal Prob. Code § 6110; N.Y. Est. Powers & Trust Law § 3-2.1(a)(3). It is not necessary, however, that they know the contents of the will. See, e.g., Strahl v. Turner, 310 S.W.2d 839 (Mo. 1958).
EXAMPLE: Maggie asks two bank employees to witness her signature on a document right before she is to leave the country on a business trip. The employees watched Maggie sign the document; then they added their signature. The document, however, contained no attestation clause, and the witnesses testified that they did not know whether they were signing a will, a power of attorney or some other document. As such, the will was not validly executed. See, e.g., In re Pulvermacher’s Will, 305 N.Y. 378 (1953).
Another function of the witness is to attest (or bear witness) to the fact that the will has been duly executed by the testator. Although it is not required, often there is an attestation clause (i.e., certificate) attached that serves this function. See, e.g., In re Estate of Bochner, 119 Misc. 2d 937 (1983).
EXAMPLE: A sample attestation clause: “On the above date, John Doe, the testator, declared to us, the undersigned, that this instrument was his last will, and he asked us to sign as attesting witnesses to it. He then signed the will in our presence, we being present at the same time. Each of us signed the will in the testator’s presence and in the presence of each other, we and each of us believing that the testator was of sound mind.”
In contrast, self-proved wills (wills admitted to probate on the strength of the recitals in the affidavit without the necessity for the witnesses to actually come and testify themselves) require the added step of the testator and witnesses signing a sworn affidavit, usually on a separate sheet of paper, before a notary public. The affidavit recites all the elements of due execution and serves as a substitute for live testimony of the attesting witnesses in open court. On the testator’s death the will may be admitted to probate without the testimony of any subscribing witnesses. See UPC § 2-504.
Absence of fraud and undue influence
- Fraud is one ground to invalidate a will. Fraud involves:
- False statements of material facts,
- Known to be false by the party making the statements,
- Made with the intention of deceiving the testator,
- Who is actually deceived, and
- That cause the testator to act in reliance on the false statements.
See, e.g., Glazewski v. Coronet Insurance Co., 483 N.E.2d 1263 (Ill. 1985); In re Roblin’s Estate, 311 P.2d 459 (Or. 1957). Given the element of deceit, courts are loath to allow the beneficiary to inherit the estate in this instance.
There are different types of fraud. Fraud in the execution involves the testator being deceived as to the character or contents of the document he is signing. See, e.g., Mitchell v. Mitchell, 41 S.W.2d 792 (Mo. 1931).
EXAMPLE: Robert was 79 years old when he decided to prepare his will, at the urging of his nephew, Seth. Despite his age, Robert was mentally capable of executing his will. In addition, he had raised Seth since the age of 6, after Robert’s brother and sister-in-law (Seth’s parents) were killed in a fire. Accordingly, he trusted Seth implicitly and felt comfortable having Seth’s wife, Trina (an attorney) prepare his will. Unbeknownst to Robert, Seth had changed certain provisions in the will (omitting the provision that gave his brother, Sandy, $35,000) so that he would get a larger portion of the estate than Robert had originally intended. Due to Seth’s fraudulent conduct, Robert’s will could be subject to either partial or full invalidation if the injured party (i.e., Sandy) presses the issue during probate.
Fraud in the inducement involves the testator making the will or writing a provision that relies upon a false representation of a material fact made to him by one who knows it to be false.
EXAMPLE: Recently, Karen decided to prepare her will. She was a very wealthy woman. She and her late husband, Raul, never had any children; therefore, she wanted to make bequests to her siblings’ children, if they needed it. Since she had lost touch with some of them, she consulted her nephew, Rod, to update her on everyone’s status. He falsely claimed that his cousins were all very well off and only he was in need of financial support. In reality, one of his cousins, Antoinette, had just been through a divorce and was struggling to rebuild her life and support her two kids. Another cousin, Felicia, had just lost her home to foreclosure after her business failed. Even Rod’s brother, Quentin, was going through hard times. Based on Rod’s statements, Karen provided for a $250,000 bequest to Rod; her other nieces and nephews were left out. The balance of her $2,000,000 estate was left to charity. Due to Rod’s fraudulent conduct, Karen’s will could be subject to either partial or full invalidation if the injured parties press the issue during probate.
Undue influence involves substituting another person’s will for that of the testator. See, e.g., In re Dunson’s Estate, 141 So.2d 601 (Fla. 1962); Rothermel v. Duncan, 369 S.W.2d 917 (Tex. 1963). The factors of undue influence are:
- a susceptible testator;
- another’s opportunity to influence the testator;
- improper influence in fact; and
- the result showing the effect of such influence.
Undue influence is difficult to prove because the evidence must be substantial, going beyond mere suggestion, innuendo or suspicion. See, e.g., Core v. Core’s Administrators, 124 S.E. 453 (Va. 1924). Merely having a motive, the opportunity or even the ability to exert undue influence is not sufficient to prove it actually happened.
If the elimination of a provision created under undue influence does not defeat the overall testamentary plan, it can be stricken; the rest of the will is still valid. See, e.g., Williams v. Crickman, 405 N.E.2d 799 (Ill. 1980). In contrast, if this revision alters the testator’s wishes for the disposition of his property, the entire will is set aside. See, e.g., In re Klage’s Estate, 209 N.W.2d 110 (Iowa 1973).
Yet, the existence of a confidential relationship between a testator and a beneficiary may raise a presumption (often rebuttable) of undue influence, especially if the beneficiary played an active role in procuring the will and the disposition under the will is “unnatural.” See, e.g., In re Arnold’s Estate, 16 Cal. 2d 573 (1940).
EXAMPLE: Charlotte and her sister, Claire, contested their mother’s will on the ground that it was the product of undue influence exerted on their mother, Carolyn, by Wendy, the will’s sole beneficiary. At the time the will was executed, Carolyn had been recently widowed, physically sick, unable to walk without help, dependent on drugs and an abuser of alcohol. During the ten months earlier, Carolyn had executed two other wills, one leaving her estate in equal parts to Charlotte and Claire, the other leaving the bulk of her estate to only Charlotte. Wendy, who had known Carolyn for only two months when the will was executed, had a confidential relationship with Carolyn as her caretaker. After learning about Carolyn’s desire to disinherit her two daughters, Wendy urged Carolyn to prepare a new will and took her to a newly admitted attorney who knew nothing of Carolyn’s situation, rather than to one of the two lawyers who had drawn up Carolyn’s previous wills. The court found for the daughters, citing Wendy’s undue influence over Carolyn. See, e.g., In re Swenson, 617 P.2d 305 (Or. 1980).
In contrast, no presumption of undue influence arises from the confidential relationship that normally exists between a husband and wife. See, e.g., In re Estate of Glogovsek, 618 N.E.2d 1231 (Ill. 1993). One party can be more influential on the other’s decision making without rising to the level of undue influence.
EXAMPLE: In Morse v. Volz, 808 S.W.2d 424 (Mo. 1991), evidence showed that Inga knew the contents of her husband’s (Marvin’s) will, that the will was drafted by Inga’s attorney and signed at his office immediately after the wedding ceremony, that her cousin drove them to the attorney’s office, that although Marvin had never met Inga’s daughter, his will left half of his estate to her if Inga predeceased him. Naturally, there was a confidential relationship between Inga and Marvin. The court concluded the evidence was insufficient to establish undue influence. Inga’s influence over Marvin did not rise to that level because her urging and soliciting her husband to make a will in her favor is not enough to prove undue influence.
Nevertheless, if the influence is done in an improper manner, there could be grounds to challenge the will. See, e.g., Snell v. Seek, 250 S.W.2d 336 (Mo. 1952). The influence can be more sinister in situations of remarriage where there are children from the former marriage.
EXAMPLE: In contrast, In re Estate of Riley, 824 S.W.2d 305 (Tex. 1992), Raymond and Virginia married after the death of Raymond’s first wife. During the subsequent months, Virginia isolated Raymond from his children and told him they were only after his money. Raymond eventually suffered a heart attack and required major surgery. Although Raymond already had a will that devised his property to his children, Virginia bought and prepared a fill-in-the-blank will for Raymond to sign the day before his surgery. Floyd, a witness to the will’s execution, stated that Raymond wanted to devise his property to his kids, and that Virginia had told him she had made such bequests in the will. Actually, Virginia was the sole beneficiary. The day after Raymond’s death Virginia filed the will and did not notify Raymond’s kids that their father had died. Here, the court concluded that Virginia had clearly exercised undue influence over Raymond because the will she procured did not reflect Raymond’s wishes.
As is often the case in legal challenges, courts decide the outcome on a case-by-case basis, evaluating the facts in each case independently. As such, it is difficult to predict the outcome of a case brought under one of these theories. The most one can do is be aware of the adverse possibilities and draft the will, as best as possible, accordingly.
Absence of mistakes
If a testator somehow signs a document purporting to be his will but it is the wrong document, most courts will hold that there is no will.
EXAMPLE: Robert was 79 years old and his wife, Audrey was 75 years old when they decided to prepare their wills. By mistake, during the execution of the wills, they signed each other’s will. If the mistake is not remedied, neither signed document will be admissible to probate. See, e.g., In re Pavlinko’s Estate, 394 Pa. 564 (1959).
Generally, if a testator omits some provision in his will it cannot be added postmortem (after death), because a will cannot be reformed or revised once the testator has died. [In the next chapter we will review when extrinsic (outside) evidence is admissible; however, that is used for to clear up ambiguities, not to add new terms to the will.]
EXAMPLE: Robert was 79-years-old when he decided to prepare his will, at the urging of his nephew, Seth. Despite his age, Robert was mentally capable of executing his will. In addition, he had raised Seth (and his brother, Sandy) since the ages of 6 and 10, respectively, after Robert’s brother and sister-in-law (Seth and Sandy’s parents) were killed in a fire. Robert intended to leave $40,000 (each) to Seth and Sandy; however, he did not notice when he executed the will that Sandy’s provision had been inadvertently omitted. After Robert died, the omission was discovered; however, it was too late to remedy the oversight. As such, Sandy was not entitled to the $40,000 bequest because it was not specifically included in the will.
Conversely, a provision included in a will by mistake may be omitted by the probate court when the will is admitted to probate, if the mistaken inclusion is separable from the rest of the will. The deletion of the provision cannot substantially alter the overall will or the intent of the testator. This type of modification is similar to one found in contracts that allows a provision that is illegal or conflicting to be eliminated; however, the contract itself still remains valid.
EXAMPLE: Robert was 79-years-old when he decided to prepare his will, at the urging of his nephew, Seth. Despite his age, Robert was mentally capable of executing his will. In addition, he had raised Seth (and his brother, Sandy) since the ages of 6 and 10, respectively, after Robert’s brother and sister-in-law (Seth and Sandy’s parents) were killed in a fire. Initially, Robert intended to leave $40,000 (each) to Seth and Sandy; however, he decided to eliminate Sandy’s bequest. After Robert died, the inclusion was discovered. The probate court can delete this provision, in keeping with Robert’s wishes, provided this alteration does not substantially change other provisions in the will.
There can also be a mistake in the inducement, when a testator is mistaken about a material fact and makes no provision in the will because of it. Unlike fraud in the inducement, a mistake in the inducement will not cause the will to be invalid. Such innocent mistakes will not adversely affect the will’s validity. In effect, no relief is granted for the injured party. See, e.g., Bowerman v. Burrris, 197 S.W. 490 (Tenn. 1917).
EXAMPLE: Recently Karen decided to prepare her will. She was a very wealthy woman. She and her late husband, Raul, never had any children; therefore, she wanted to make bequests to her siblings’ children, if they needed it. Her sister, Jenna, had two daughters, Antoinette and Felicia. Her other sister, Stephanie, had two sons, Rod and Quentin.
EXAMPLE: Karen provided for a $250,000 bequest (each) to Felicia, Rod and Quentin. She had eliminated Antoinette because she still thought Antoinette was married to a wealthy surgeon. Karen was unaware that Antoinette had just been through a messy divorce and was struggling to rebuild her life and support her two kids, since she had lost touch with her. The balance of her $2,000,000 estate was left to charity. Karen’s mistake about Antoinette’s status does not cause the will to be invalid. Unfortunately, Karen’s omission cannot be modified.
Although the will may not be invalidated or changed, the intended beneficiaries might be able to hold the attorney liable for negligent drafting.
EXAMPLE: Trudy and her husband, Ricky, recently drafted their wills. Both provide that the other will receive the testator’s estate if the other survives by 30 days. The wills also provide that if Trudy and Ricky die in a common disaster, their estates are to be divided between two nephews, Wade and Chad. Ricky dies from a stroke and Trudy dies from cancer fifteen days later. Since neither will contains any other dispositive provisions, both estates pass by intestacy to persons other than Wade and Chad. Wade and Chad sue the attorney who drafted the wills. The court held that the attorney was liable to the intended beneficiaries, Wade and Chad, who were damaged by the negligent drafting of the wills. The attorney owed a duty to Trudy and Ricky to properly reflect their intention in the wills, taking into account all foreseeable events. Wade and Chad based their suit on either tort negligence or in contract as third party beneficiaries. See, e.g., Ogle v. Fuiten, 466 N.E. 2d 224, (Ill. 1984); Needham v. Hamilton, 459 A.2d 1060 (D.C. 1983).
Ultimately, the testator is responsible for ensuring that the will accurately reflects his intentions. This is crucial, since once the testator dies; there usually is no way to rectify any problems with the will. Courts will not step in to rewrite someone’s will.
Special consideration for attorney-draftsman as beneficiary or fiduciary
Attorneys are held to a higher standard when it comes to undue influence claims. A bequest to an attorney is particularly susceptible to a claim of undue influence because of the confidential and fiduciary nature of the attorney-client relationship. Accordingly, many courts presume there was undue influence in instances where the attorney drafted the will. See, e.g., Carter v. Williams, 431 S.E.2d 297 (Va. 1993).
EXAMPLE: After Mildred’s husband dies, Clarence, her attorney becomes her lover. This relationship continues for several years until her death. Three years before her death, Mildred had another attorney (independent) prepare her will. This will left almost all of Mildred’s property to Clarence. When Mildred died, her sister, Bea, contested the will on the ground of undue influence. Clarence countered that Mildred acted on the independent advice and counsel of her attorney. The court held that the will was invalid. The court cited that this independent attorney was not diligent enough in probing Mildred about her family history or her relationship with Clarence, particularly, in not questioning why she was giving so much of her property to a nonrelative to the exclusion of blood relatives. As such, the independent attorney was labeled a mere “scrivener” and in its view the intimate relationship between Mildred and Clarence was such that the presumption of undue influence was not overcome. See In re Will of Moses, 227 So.2d 829 (Miss. 1969).
New York takes an even harsher view of undue influence in these circumstances. In New York, attorneys are required “to explain the circumstances and to show in the first instance that the gift was freely and willingly made.” See In re Putnam’s Will, 257 N.Y. 140 (1931). This explanation takes place at a hearing, even if the will is not contested and no objection to the gift is filed.
Another dim view of the practice of writing a will under which you are a beneficiary comes from Texas. Specifically, the Texas statute voids a testamentary gift to the attorney who prepared the will, his spouse, or his employee, unless any of these parties were related to the testator. See Tex. Prob. Code § 58B.
Conversely, if the will was prepared by another attorney, whereby the testator received independent legal advice, no presumption of undue influence arises. See, e.g., Frye v. Norton, 135 S.E.2d 603 (W. Va. 1964).
Clearly, these safeguards were put into place to protect the testator from potentially being unfairly influenced by a trusted adviser.
Safekeeping of wills
A testator’s first inclination may be to keep the will in a safe deposit box, along with other important papers. This option could cause delay in locating the will because access to a decedent’s safe deposit box to search for the will requires an ex parte court order. As an alternative, the will can be deposited in a will safe or vault of the attorney who drafted it.
Lastly, for a nominal fee, the will can be deposited in the will safe at the surrogate court. This last option could be inconvenient if the testator decided to change the will at a later date. In some jurisdictions, process must be served on the beneficiaries and fiduciaries named in the earlier will if their rights and interests are adversely affected by the later will.