PORTFOLIO

Testamentary Capacity, Undue Influence and Validity of Wills (Portfolio 824)

Tax Management Portfolio, Testamentary Capacity, Undue Influence and Validity of Wills, No. 824-3rd, addresses the requirements for the execution of a valid will, a critical element in the implementation of a successful estate plan.

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DESCRIPTION

Tax Management Portfolio, Testamentary Capacity, Undue Influence and Validity of Wills, No. 824-3rd, addresses the requirements for the execution of a valid will, a critical element in the implementation of a successful estate plan. If a will is to be recognized as valid, it must comply with the formalities of execution under state law and the testator must have the necessary testamentary intent. The Detailed Analysis discusses the formalities of execution in depth, since the validity of a will depends upon adherence to the requirements of the jurisdiction in which the will is executed as well as that in which it is ultimately probated.
The discussion begins with the historical background to will formalities. Much of the discussion of current law is based on the provisions of the 1969 Uniform Probate Code and the 1990 Revised Uniform Probate Code, which form the basis of most state statutes. In addition, the Portfolio provides summaries of the execution requirements of all 50 states and the District of Columbia, as well as the choice of law rule in each jurisdiction. Finally, the authors provide detailed, practical suggestions for ensuring that a client's will complies with the relevant execution requirements so that it withstands any subsequent challenge.
Even if a will is executed with the necessary formalities, it is still subject to challenge if the testator did not have the required testamentary capacity at the time of execution or was subject to undue influence. This Portfolio addresses both of these issues, again relying upon the Uniform Probate Code, the Revised Code, and state law. The law of testamentary capacity in Kentucky, Pennsylvania, Florida, and Colorado is explained in more detail as a way of demonstrating the varying standards in the states, and there is a similar examination of Florida, Wisconsin, and Kentucky law with respect to undue influence.
In its final section, the Detailed Analysis addresses issues that are significant in will contests, with suggestions for drafting and executing wills in a manner that will avoid such contests. The authors highlight a number of situations that are at an especially high risk of leading to will contests, and prescribe additional precautions that can be taken in those cases. They also discuss the ethical issues that may be faced by attorneys when preparing wills and when representing an estate in a will contest.
This Portfolio may be cited as Marty-Nelson, Gilmore, and Rodriguez-Dod, 824-3rd T.M., Testamentary Capacity, Undue Influence and Validity of Wills.
This Bloomberg BNA Portfolio is not intended to provide legal, accounting, or tax advice for any purpose and does not apply to any particular person or factual situation. Neither the author nor the publisher assumes responsibility for the reader's reliance on information or opinions expressed in it, and the reader is encouraged to verify all items by reviewing the original sources.


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AUTHORS

ELENA MARTY-NELSON, ESQ.
Elena Marty-Nelson, B.A., University of Miami (1980); J.D., Georgetown University Law Center (1983); LL.M. (Tax), Georgetown University Law Center (1986); Institute Fellow, Harrison Institute for Public Law Georgetown University Law Center (1990–1991).

ANGELA GILMORE, ESQ.
Angela Gilmore, B.A., Houghton College (1985); J.D., University of Pittsburgh School of Law (1988); Faculty Fellow, University of Iowa College of Law (1990–1992).

ELOISA C. RODRIGUEZ-DOD, ESQ.
Eloisa C. Rodriguez-Dod, B.B.A., University of Miami (1980); M.B.A., Florida International University (1983); J.D., University of Miami (1990).

TABLE OF CONTENTS

Detailed Analysis

I. Introduction

II. Formalities of Execution

Introductory Material

A. Historical Background

B. Purposes of Will Formalities

1. Cautionary Function

2. Evidentiary Function

3. Protective Function

4. Channeling Function

C. Recurrent Issues Regarding the Mechanical Elements of Attested Will Execution

1. Testator's Signature

a. Location of Testator's Signature

b. Proxy Signature or Signature by Mark

2. Witnesses

a. Number of Witnesses

b. Qualification of Witnesses

c. Dual Requirement for Witnesses

(1) Witness Must Actually Witness

(2) Witness Must Also Sign the Will

3. The Statutory Presence Requirement

4. Publication

5. Choice of Law

6. Compliance

7. Self-Proving Affidavits

D. A Note on Holographs and Noncupative Wills

E. Suggested Will Formalities

F. Survey of Specific State Execution Requirements

1. Alabama

2. Alaska

3. Arizona

4. Arkansas

5. California

6. Colorado

7. Connecticut

8. Delaware

9. District of Columbia

10. Florida

11. Georgia

12. Hawaii

13. Idaho

14. Illinois

15. Indiana

16. Iowa

17. Kansas

18. Kentucky

19. Louisiana

20. Maine

21. Maryland

22. Massachusetts

23. Michigan

24. Minnesota

25. Mississippi

26. Missouri

27. Montana

28. Nebraska

29. Nevada

30. New Hampshire

31. New Jersey

32. New Mexico

33. New York

34. North Carolina

35. North Dakota

36. Ohio

37. Oklahoma

38. Oregon

39. Pennsylvania

40. Rhode Island

41. South Carolina

42. South Dakota

43. Tennessee

44. Texas

45. Utah

46. Vermont

47. Virginia

48. Washington

49. West Virginia

50. Wisconsin

51. Wyoming

III. Testamentary Capacity and Undue Influence

Introductory Material

A. Testamentary Capacity

1. The Four-Pronged Test

a. The Nature and Extent of His or Her Property

b. The Natural Objects of His or Her Bounty

c. The Disposition the Testator Wishes to Make of His or Her Estate

d. The Act of Making a Will

2. Lucid Intervals and Insane Delusion

3. Procedural and Evidentiary Issues

4. Illustrative States for Testamentary Capacity

a. Kentucky

(1) In General

(2) Lucid Intervals and Insane Delusions

(3) Procedural and Evidentiary Issues

b. Pennsylvania

(1) In General

(2) Lucid Intervals and Insane Delusions

(3) Procedural and Evidentiary Issues

c. Florida

(1) In General

(2) Lucid Interval and Insane Delusion

(3) Procedural and Evidentiary Issues

d. Colorado

(1) In General

(2) Lucid Intervals and Insane Delusions

(3) Procedural and Evidentiary Issues

B. Undue Influence

1. In General

a. Presumptions

b. Effect of Presumption on Burden of Proof

2. Illustrative States for Undue Influence

a. Florida

(1) Raising the Presumption of Undue Influence in Florida

(a) Substantial Beneficiary

(b) Confidential Relationship

(c) Active Procurement

(2) Effect of Undue Influence Presumption in Florida

b. Wisconsin

(1) Using the Four-Factor Direct Method to Demonstrate Undue Influence in Wisconsin

(a) Susceptibility to Undue Influence

(b) Opportunity to Influence

(c) Disposition to Influence

(d) Coveted Result

(2) Using the Two-Factor Method to Obtain a Presumption of Undue Influence in Wisconsin

(a) Confidential Relationship

(b) Suspicious Circumstances

c. Kentucky

(1) Badges of Undue Influence in Kentucky

(2) Presumption of Undue Influence in Kentucky

IV. Will Contests: Precautionary Measures and Litigation Considerations

A. In General

1. Maximize Formalities for Execution

2. Avoid the Appearance of Undue Influence

3. Ascertain Testamentary Capacity

B. High-Risk Will Contest Situations

C. Additional Precautions

1. Using Appropriate Witnesses

2. Physicians or Other Health Care Professionals

3. Visual Recording

4. No-Contest Clause

5. Recitation Clause

6. Successive Wills with the Same Testamentary Plan

7. Pre-Mortem Probate

8. Inter Vivos Gift to Likely Contestant

9. Non-Probate Assets

D. Ethical Considerations

1. Ethical Issues for the Drafting Attorney

a. Lawyer's Representation of Testator and Beneficiary

b. Lawyer's Fee Paid by a Beneficiary of the Will

c. Lawyer as a Beneficiary of Testator's Will

d. Lawyer's Client as a Beneficiary of Testator's Will

e. Lawyer Named as Executor

f. Client Under a Disability

2. Ethical Issues for the Litigating Attorney

a. Lawyer's Representation of Personal Representative

b. Lawyer as Witness


WORKING PAPERS

Working Papers

Table of Worksheets

Worksheet 1 Checklist for Proper Execution of Will

Worksheet 2 Sample Attestation Clauses

Worksheet 3 Sample Self-Proving Affidavit Forms

Worksheet 4 Sample No-Contest (“in terrorem”) Clauses

Worksheet 5 Colorado Jury Instructions for Civil Trials for Statement of the Case, Due Execution, Conscious Presence, Testamentary Intent, Testamentary Capacity and Sound Mind, Insane Delusion, Undue Influence, and Confidential Relationship

Worksheet 6 Georgia Suggested Pattern Jury Instructions Volume I: Civil Cases for Due Execution, Testamentary Intent, Testamentary Capacity, and Undue Influence

Worksheet 7 Maryland Civil Pattern Jury Instructions, Fourth Edition with 2006 Supplement, for Due Execution, Testamentary Capacity, Insane Delusions, and Undue Influence

Worksheet 8 Mississippi Model Jury Instructions Civil for Due Execution, Testamentary Capacity, Undue Influence, and Confidential Relationship

Worksheet 9 Nebraska Jury Instructions Second Edition, Civil (2006-07 Edition) for Testamentary Capacity and Undue Influence

Worksheet 10 Ohio Jury Instructions for Due Execution, Testamentary Capacity, and Undue Influence

Worksheet 11 Sample Petition for Revocation of Probate - Florida - Alleging Lack of Testamentary Capacity and Undue Influence

Worksheet 12 Interrogatories of Contestants Directed to Proponent - Florida

Worksheet 13 Sample Order Revoking Probate of Will - Florida

Bibliography

OFFICIAL

State Statutes:

Legislation:

Miscellaneous

American Bar Association Formal Opinion:

State Cases:

UNOFFICIAL

Text and Treatises:

Tax Management Portfolios:

Periodicals:

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