Every state has a Wills Act, where a person who dies passes the estate testate. A will is a way to “opt out” of the default intestacy statutes. If the will has any gaps, then the remaining estate will revert back to instestacy.
A will only goes into effect at the death of testator. So, the testator is not able to testify as to the intent of the will. Thus, for a will to be valid, it needs to be authentic, voluntary, and describe the intent of the testator. This section discusses the authenticity, or execution of wills. These consider the rules for attested wills (the most common), notarized wills, and holographic wills.
Attested Wills
Core Formalities
An attested will requires a writing, signature (complete, but a mark or online font may work), and attestation (witnessed by uninterested witnesses. If a witness is interested, any inheritance more than their intestacy share is removed (purged) unless there are enough uninterested witnesses). The purpose of these is to verify the authenticity of the will in the absence of the decedent.
Strict Compliance
This is a rule where the will must be executed with strict compliance with the statute. Without the strict compliance, the will is revocable. Strict compliance can require the presence of the witnesses standing together watching the testator sign, and failure to meet that requirement will cause the will to be revocable.
Bitetzakis v. Bitetzakis
264 So. 3d 297 (Fla. App. 2019).
Question
Whether the will was signed and can therefore be executed.
Rule
The will requires strict compliance with the law. Here, that requires a signature at the end of the document, signed in front of two witnesses.
Holding
The will was not signed. Reversed.
Facts
Mr. Bitetzakis passed away and his grandson was appointed as the administrator. The grandson sought to enter a will into probate and a daughter of Mr. Bitetzakis opposed, saying the will was not properly executed.
Mr. Bitetzakis produced the will in the living room of his home and had two witnesses sign on the bottom. Mr. Bitetzakis began to sign when he was interrupted by his wife, saying he needed to sign in front of a notary. Thus, on the will, only his first name appears (he normally signs both first and last name). The next day he went to the notary with an affidavit of subscribing witnesses, stating that he was a witness. This document was signed by his full name.
Analysis
Although Mr. Bittetzakis did not need a notary, this will was not executed because the signature was incomplete. The compliance requires a signature and we do not have one.
Harmless Error Rule
12 states have adopted the harmless error rule. Basically, the rule states that if the execution of the will is lacking one or two minor formalities, the error is harmless and the execution remains valid. This may increase litigation, but it will also make resolving litigation easier. The standard for whether a will’s intent has been satisfied is by clear and convincing evidence.
In re Estate of Hall
51 P.3d 1134 (Mont. 2002).
Question
Whether Jim Hall has intended the draft will to be his will.
Rule
In the lack of proper execution methods, a will may still be valid if the document establishes by clear and convincing evidence that the decedent intended the document to be the will.
Holding
The decedent intended the document to be his will, affirmed.
Facts
Jim and Betty Hall went to a lawyer to revise their will. Together, the made several handwritten changes before coming to an agreement. Jim asked the lawyer if this draft copy could serve as his will until a clean version was created. The lawyer said yes. So, Jim and Betty signed the draft will without any witnesses. When they got home, Jim asked Betty to destroy his original will.
Jim passed without executing a clean copy of the will. Betty attempted to submit the new joint will into probate. Jim’s daughter (from a previous marriage) opposed and sought to submit the original will into probate.
Analysis
The daughter argues that the new will was not intended to be the decedent’s will because it was still in incomplete form, and testimony stated that they were waiting on a final version. However, the court disagrees because the same testimony stated that they believed the new will was good. This was further evidenced by the fact that when they returned home, Jim directed Betty to destroy the original will.
Electronic Wills and Harmless Error
In re Estate of Horton
925 N.W.2d 207 (Mich. App. 2018).
Question
Whether an unexecuted electronic document written by the decedent in anticipation of his death was sufficient to constitute as his will.
Rule
Harmless error may be applied if there is clear and convincing evidence the document was intended to be the decedent’s will.
Holding
There is clear and convincing evidence, affirmed.
Facts
Mr. Horton was 21 years old when he committed suicide. A handwritten note was found in a journal that directed the reader to an electronic document containing several paragraphs regarding his feelings on God, those around him, himself, and how his possessions should be distributed. The distribution included ensuring his uncle received his guns, his half-siblings received the car and the trust, and that his mother be disinherited. Anything left over would be given to the family he was staying with.
Upon his death, the family submitted the document to probate as a will. His mother contested the document and sought to be appointed administrator of the estate (being the only heir if the court says he died intestate).
Analysis
The note was clear and convincing that the document was intended to be the decedent’s will. Specifically, the handwritten note directing the reader to a document written in anticipation of his immediate death, and the disinheritance of the only heir, shows that the decedent wished the document to be his will.
Additional Notes
Generally, the only defects permitted under the harmless error rule is the attestation problems. That is, if it is missing witnesses, the harmless error may apply if the decedent intended the will to be final. The standard is clear and convincing evidence about the decedent’s intent.
Notarized Wills
Only two states allow notarized wills: Colorado and North Dakota. I say allow because attested wills are still permitted and the primary method of verification.
Holographic Wills
About half the states allow holographic wills. These are wills written by hand by the testator and signed by the same hand. There is no need for witnesses in a holographic will.
Discerning Intent
In re Kimmel’s Estate
123 A. 405 (Pa. 1924).
Question
Whether the decedent intended his handwritten letter to be a will. Whether signing as “Father” was sufficient to satisfy the signature requirement.
Rule
A will needs to have a testamentary character and have a sufficient signature to be in compliance with the Wills act.
Holding
The paper was testamentary and the siganture was sufficient. Affirmed.
Facts
Mr. Kimmel wrote a letter to his sons still living with him. The weather was poor. In the letter, he said there were important papers he intended to leave with the addressed sons but the weather was not permitting the delivery. The boys were to keep the letter “if enny thing happens” as evidence the value of the papers went to them. The same day the letter was sent, Mr. Kimmel died suddenly.
His oldest son now contests the admission of the letter into probate.
Analysis
The father was worried about his passing and stated “if enny thing happens.” This is a testamentary intent. Also, the signature is sufficient because this is a letter, and it was custumary for him to sign in this type of way.
Additional Notes
There are a few different types of holographic wills when there is a preprinted form and the testator fills out the form. One type of state says this is not a valid holographic will. A few other states will allow the material provisions: “I devise all my property to my wife.” The third approach (and adopted by the UPC) allow material portions of the provisions: “all my property to my wife.”
