Execution of WillsHolographic Wills

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Ritual Function The performance of some ceremonial for the purpose of

impressing the transferor with the significance of his statements.

Evidentiary Function Supply satisfactory evidence to the court.

Protective Function Prophylactic purpose of safeguarding the testator.

Channeling Function Standardization of form simplifies administration.

Functions of Formalities

“Does this remark indicate finality of intention to transfer ?”[i.e., finality in the absence of writing a new will]

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Indiana’s holographic statute

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Kimmel’s Estate (1)

Johnstown, Dec. 12.

The Kimmel Bro. and Famly

We are all well as you can espec fore the time of the Year. I received you kind & welcome letter from Geo & Irvin all OK glad you poot your Pork down in Pickle it is the trueway to keep meet every piece gets the same, now always poot it down that way & you will not miss it & you will have good pork fore smoking you can keep it from butchern to butchern the hole year round. . . .

Kimmel’s Estate, p. 269

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Kimmel’s Estate (2)

What part of the letter suggests that he intended it as his will?

well I cant say if I will come over yet. I will wright in my next letter it may be to ruff we will see in the next letter if I come I have some very valuable papers I want you to keep fore me so if enny thing hapens all the scock money in the 3 Bank liberty lones Post office stamps and my home on Horner St goes to George Darl & Irvin Kepp this letter lock it up it may help you out. Earl sent after his Christmas Tree & Trimmings I sent them he is in the Post office in Phila working.

Will clost your Truly, Father.

As we’ve seen courts are not sticklers about signatures; “Father” is sufficient—it was the way Kimmel typically signed his letters

Kimmel’s Estate, (cont.)

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Conditional wills, p.272

Conditional devises are present in almost all wills (“to A if A survives me”)

Conditional wills should never be used (“This is my will if I die on my trip to the South Pole.”) Fortunately for testators, courts have been

lenient with the conditional language in conditional wills, reading them as motives rather than triggering contingencies (perhaps because the leading authority, Eaton v. Brown, is a Supreme Court opinion by Justice Holmes).

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The tractor fender will(p. 273)

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Macool3 A.3d 1258 (N.J. App. Div. 2010)

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How much must be in the testator’s handwriting?

Since holographic wills earn their authenticity because they are written by the testator by hand, a key question is how much of the will must be written by the testator?  It is common for people to fill in the blanks on a

pre-printed form. If they have it properly witnessed, then it can be probated as a formal will

But if they don’t have it properly witnessed (say they have it notarized as in the Ferree case, pages 266-267), can they have it probated as a holographic will? 10

What were the facts in Gonzalez?, p. 274

Fermin Gonzalez filled out a preprinted form for his will and showed it to his brother and sister-in-law.

The sister-in-law saw Fermin sign the form, but no one signed as a witness.

However, the brother and sister-in-law and Fermin’s mother signed another preprinted form onto which he planned to copy his instructions.

Did Fermin execute a valid will? It had no signatures by witnesses, but was it valid as a

holographic will? The will was contested because he left his estate to three

out of his five children11

Estate of GonzalezEstate of Gonzalez

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Maine statutes in Gonzalez

[With some exceptions], every will shall be . . . signed by at least 2 persons each of whom witnessed either the signing or the testator's acknowledgment of the signature or of the will. (§ 2-502)

A will which does not comply with section 2-502 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator. (§ 2-503) 13

Did Fermin write the material provisions?

Some states incorporate the preprinted words into the will

Other states ignore the preprinted words and consider whether the handwritten words alone make up a will (as in Ferree)

This court includes the preprinted words Note that Fermin’s will reads like a will even

without the preprinted words, while Ferree’s does not

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What result in a harmless error, non-holographic state?

Would Fermin’s document have been saved as a formal will without the witnessing?

Perhaps, but as a formal will, Fermin’s document is weaker than Ferree’s. We might ask whether the contestants asked the right question. Instead of asking whether the pre-printed language counted as part of the will, they could have asked whether this really was Fermin’s will or only a draft.

What makes it only a draft? The witnesses signed the other form.

What makes it a will? Fermin signed it twice.

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Estate of Southworth

Signature and Handwriting (1)

A holographic will must be: Written by the testator’s hand, and Signed by the testator

Some states require that the will be dated Signature

In almost all states permitting holographs, the will may be signed at the end, at the beginning, or anywhere else on the face of document.

BUT, if not signed at the end, there may be doubt about whether the decedent intended his name to be a signature.

Handwriting First generation: Entirely written, signed and dated. Second generation: Material provisions Third generation: Material portions and extrinsic evidence allowed

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The will in Williams v. TowleThe will in Williams v. Towle,66 Cal. Rptr. 3d 34 (App. 2007)

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Signature and Handwriting (2)

A holographic will must be: Written by the testator’s hand, and Signed by the testator

And dated in some states Signature

In almost all states permitting holographs, the will may be signed at the end, at the beginning, or anywhere else on the face of document.

BUT, if not signed at the end, there may be doubt about whether the decedent intended his name to be a signature.

Handwriting First generation: “Entirely written, signed, and dated.” Second generation: “Material provisions.” Third generation: “Material portions” and extrinsic evidence

allowed. 19

MT

WY

ID

WA

OR

NV

UT

CA

AZ

ND

SD

NE

CO

NM

TX

OK

KS

AR

LA

MO

IA

MN

WI

IL IN

KY

TN

MS AL GA

FL

SC

NC

VAWV

OH

MI

NY

PA

MD

DE

NJCT

RI

MA

ME

VT

NH

AK

HI

First Generation

Second Generation

Third Generation

Other

Handwriting Statutes (2008)

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UPC §2-502(b)-(c)(b) [Holographic Wills.] A will that does not comply with subsection (a) is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.

According to the to §2-502(b), language such as “I give, devise and bequeath to” in a preprinted will form should not disqualify the instrument as a valid holograph if the testator fills in the rest by hand.

(c) [Extrinsic Evidence.] Intent that a document constituted the testator’s will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator’s handwriting.

The Kuralt case indicates another way in which extrinsic evidence is considered

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In re Estate of Kuralt (1)

CharlesKuralt

Petie(wife)

Shannon

Montana PropertyResiduary Estate

Child Child Child ChildChild

In re Estate of Kuralt,(Why is this case decided by a Montana court when

Kuralt lived and died in NY?)

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In re Estate of Kuralt (2)

In re Estate of Kuralt,15 P.3d 931 (Mont. 2000) (slide 2)

1962 1985

1997

K marries Suzanne Baird.

Timeline

Pat moves into MT log cabin on 20 acre parcel, built for her by K. Adjacent to two additional parcels ~ 90 acres in area.

1968

K meets Pat (Baker) Shannon, long-term romance ensues.

Holographic will executed leaving MT property to Pat

Formal will executed leaving nothing to Pat

K, in hospital, writes letter to Pat, promising to: “have the lawyer visit the hospital to be sure [she] inherit[s] the rest of the place in MT.

Sham sale of log cabin parcel to Pat; intention to complete second sham sale of remainder of MT property.

1989

1994June 18,

1997July 4, 1997

K dies

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In re Estate of Kuralt (3)In Re Estate of KuraltIn re Estate of Kuralt,

15 P.3d 931 (Mont. 2000)

The holographic will at issue in Kuralt

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In re Estate of Kuralt (4)

June 18, 1997

Dear Pat —

Something is terribly wrong with me and they can’t figure out what. After cat-scans and a variety of cardiograms, they agree it’s not lung cancer or heart trouble or blood clot. So they’re putting me in the hospital today to concentrate on infectious diseases. I am getting worse, barely able to get out of bed, but still have high hopes for recovery … if only I can get a diagnosis! Curiouser and curiouser! I’ll keep you informed.

I’ll have the lawyer visit the hospital to be sure you inherit the rest of the place in MT. if it comes to that.

I send love to you & [your youngest daughter,] Shannon. Hope things are better there!

Love,

C.

In re Estate of Kuralt,15 P.3d 931 (Mont. 2000)

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Kuralt Why didn’t the court simply probate the 1989

holographic will (p.281)? Kuralt wrote a formal will in 1994, which overrode the 1989

holographic will. How did Kuralt try to get around the formal will?

He decided to transfer the property to his lover through sham sales. He transferred part of the property in 1997, but became ill before the planned transfer of rest of the property.

Was the letter from the hospital a valid holographic codicil to the 1994 will, or was it an expression of a future intent to write a will (page 283)?

The district court found it to be a valid holographic, and the supreme court held that the district court did not err in so finding (page 285): 26

Kuralt

What aspects of the letter to Shannon suggest that Kuralt did not intend to transfer the Montana property via a will? He enclosed two checks with the letter, which

presumably were designed to cover the purchase prices for the two parcels in a sham sale

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Problem with Kuralt Suppose T dies without a will but with one of the following

kinds of evidence indicating his chosen beneficiary at death:

T’s letter to his lawyer to draft a will in accord with T’s wishes;

a videotape of T explaining whom he wants as beneficiary; a typed, unsigned document prepared by T entitled “estate

plan”; the credible testimony of five individuals, all of whom say

that T wanted to leave his property in Manhattan to his friend A;

T’s letter to a beneficiary informing her that he plans to leave her property at his death; or

T’s letter to a beneficiary informing her that he plans to have a lawyer draft a will to ensure that she inherits his property at his death.

Do we have a will with any of these kinds of evidence? 28

Problem with Kuralt

Restatement (Third) of Property: Wills and Other Donative Transfers §3.3, cmt. b, Illus. 1 (1999):“G sent a signed letter to his attorney giving directions for the preparation of his will. G died while the will was being prepared. Neither the letter nor the draft prepared by his attorney can be given effect because G never adopted either document as his will.”

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In re Will of Ferree, pp.266-267

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