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Bloomberg Tax
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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
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 terroremâ€) 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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