Types of Wills
Every state provides a mechanism for creating a will that is valid and enforceable. Wills, which typically address such concerns as distribution of property, naming fiduciaries and naming guardians for minor children, must be signed and witnessed in accordance with the formalities of state law. A will that conforms to the written and signature requirements is known as a formal will.
There are various types of formal wills depending upon the will’s primary purpose. While they are all valid and enforceable, they can be distinguished by their purposes and what they purport to do.
A statutory will is a model for a formal will created by a state or state agency, which requires a person to fill in the blanks of a pre-written template . It typically calls for distribution of property and names an executor.[1] Statutory wills are cheap are easy to make (they do not generally require legal assistance), but they are inflexible and cannot accomplish complex tasks.
A simple will has basic provisions to dispose of property, but little else, other than appointment of an executor and comparable boilerplate provisions. The executor’s duties and responsibilities are sometimes incorporated by reference to state law and need not be listed directly in the document. By contrast, a complex will may include more detailed provisions, including the naming of a guardian, creation of testamentary trust and exhaustive lists of executor powers and responsibilities.
Mutual, mirror, or “sweetheart” wills are usually executed by spouses[2] and mirror each other, in which each spouse’s will leaves all property to the other spouse. Similarly, a joint will may, in some states, be used by spouses to leave property to each other. Unlike the mutual will, a joint will is a single document, signed by both spouses, which determines what will happen to all of the couple’s property after one spouse dies and after the second spouse dies.
Finally, a pour-over will is a will used when a person has created a living trust and wants the trust to govern the administration of her property. The pour-over will transfers or “pours” all of the testator’s assets into a named living trust. Pour-over wills can be simple wills, or they may be more complex, often providing an alternate form of distribution if the trust does not exist at the time of death.
Approved Form
Regardless of the type of will, a valid will:
- Must be in an approved form under state law;
- Must be created with testamentary intent;
- The testator must have testamentary capacity; and
- The requirements for formal execution must be met.
Formal, typewritten wills are valid in all states, but only about half of the states recognize handwritten or “holographic” wills.[3] Holographic wills are wills written and signed by the testator. Some states allow these wills to be valid assuming the testator’s handwriting can be verified.
States that recognize holographic wills may have different requirements for validity. Idaho, for example, requires a holographic will’s signature and material provisions to be in the testator’s handwriting.[4] Under Texas law, a holographic will must be wholly written in the testator’s handwriting.[5] While in many states a holographic will need not be witnessed, others, like Ohio, require at least two witnesses.[6] New York, on the other hand, allows holographic wills only by soldiers at war and mariners at sea.[7]
By contrast, “nuncupative” or oral wills are valid in just a few states and only under limited circumstances, such as where the testator fears imminent death. Ohio recognizes oral wills, but only if written down and attested to by two competent, disinterested witnesses within ten days of being spoken and only with respect to personal property.[8] Under Washington law, oral wills are valid if made by a member of the armed forces or by any other person for personal property less than $1,000 in value.[9]
Testamentary Intent
For a will to be created with testamentary intent, the testator must know the document he is signing is a will and must intend for that document to operate as a will at his death.[10] No particular words are necessary to show testamentary intent. Instead, the document must indicate that the testator intended to create a will at the time he signed it. Any language which clearly indicates the testator’s intention to dispose of property to certain persons is sufficient.[11]
A will’s title, often “Will” or “Last Will and Testament,” can be one indicator of testamentary intent. Another may be the introductory clause, which often states the testator’s intent that the document serve as his last will and testament or other similar language. Also, the signature clause often states that the testator is signing the document as his last will and testament. Other proof of testamentary intent may include provisions which dispose of the testator’s property or which name an executor for the estate.
Where a document does not show an intent to dispose of a person’s property, there is no testamentary intent and so the will is invalid. If there is outside evidence (such as a witness) that the testator intended it to be a will, such extrinsic evidence was historically not admissible to prove the necessary intent. However, the Uniform Probate Code allows proof of testamentary intent by extrinsic evidence[12] and other courts have followed that rule.[13]
An Arkansas case, Edmundson v. Estate of Fountain, demonstrates the difficulties in determining testamentary intent from a will (in that case, a holographic will). There, a handwritten note by Mrs. Fountain, found in an envelope hidden inside a roll of upholstery, was dated, signed, and witnessed, and provided:
“Kay Edmonston
160 acre farm & contents remaining
37 head of cattle at this time
1972 truck
Wayne Fountain
Cattle on Wayne’s Farm & Fiddle
Shirley Washington
200.00
E.W. Fountain
200.00
Nell Harris
200.00”
The Supreme Court of Arkansas held that this was NOT to be considered a valid will. First, there was no language in Mrs. Fountain’s will that purported to leave property to Fountain’s children, making it unlikely that she wanted this to be her will. Second, the lack of dispositive language made Mrs. Fountain’s will facially defective. Because Mrs. Fountain’s will lacked testamentary intent on its face, extrinsic evidence was not admissible to prove testamentary intent.[14]
Testamentary Capacity
To create a valid will, a testator must also have testamentary capacity, including having attained a certain age (usually 18)[15] and being of sound mind.[16] Some states also allow emancipated minors under the age of 18 to make a will.[17]
The terms “sound mind” or “sound and disposing memory” are interpreted by courts to generally mean that the person understands
(1) the nature of the business in which he is engaged,
(2) the nature and extent of his property,
(3) the names and identities of those who had natural claims upon his bounty, and
(4) his relation to members of his family.[18]
The capacity to execute a valid will is minimal—lower than that required to execute most other legal documents or contracts.[19]
Testamentary capacity must exist at the time a will is made; nonetheless, evidence of capacity before and after the date of execution may be relevant in determining whether the testator had capacity as of the date of execution of the will.
Even a partially incapacitated testator may have lucid moments when he or she has the requisite capacity and could execute a will at that time. As an example, a 78-year-old father with lung cancer was held to have testamentary capacity when he executed a will while in the hospital, in the presence of two nurses and a hospital notary, even though he “suffered from old age, physical infirmity and progressive dementia,” was “afflicted with a fatal disease” and perhaps possessed “an imperfect mind or memory.” The court said, “Mere proof that the decedent suffered from old age, physical infirmity and progressive dementia is not necessarily inconsistent with testamentary capacity and does not preclude a finding thereof … the relevant inquiry is whether the decedent was lucid and rational at the time the will was made.”[20]
By contrast, a woman who was receiving Social Security benefits based on a determination that she was suffering from “severe mental and emotional impairment” and whose witnesses testified she “lived in a fantasy” and told “bizarre stories about certain family members”, was held to lack capacity when she had attempted to disinherit her son and benefit her brother and a church.[21]
Execution Requirements and Self-Proving Affidavits
Wills must be signed by the testators, though courts take liberal views of what constitutes a signature. A signature can contain a full name, just a first name, a nickname or even an “X.”[22] The key is that the mark is intended to be the testator’s signature and is made willingly, even if the testator needs assistance with signing his name.[23] A signature by another person is also acceptable, if it’s at the testator’s direction and in his or her presence.[24]
In most states, there is no requirement that the testator sign at the end of the will. The signature can appear anywhere.[25] But, signing anywhere but the end can create confusion as to the intended effect of provisions that appear after the signature. The generally accepted view is that all will provisions that appear before the signature are effective, while the provisions following the signature are ineffective. An exception to this 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.[26]
A valid will must also be signed by at least two witnesses.[27] Those witnesses must meet minimum qualifications for their signatures to be effective. This often means witnesses must be over age 18 and of sufficient mental capacity to understand the nature of what they are doing, so that if needed, they can testify in court as to their actions and the testator’s competency.[28] Witnesses are also often required to be disinterested parties who are not beneficiaries of the will, although some states will allow interested witnesses to prove the validity of a will if the gifts to them are voided.[29]
Many states allow the testator or witnesses to make an affidavit before a notary when the will is signed regarding the execution requirements.[30] In these “self-proving” affidavits, the witnesses attest that the will was executed properly by a competent testator. These affidavits can later be used to prove that the will was executed properly, as a substitute for the testimony of the witnesses in court after the testator’s death, as to the testator’s intent and capacity.
The Uniform Probate Code provides two methods of execution and self-proof. The first is a combined will execution and self-proving procedure that allows the testator and witnesses to both execute and attest a will, and at the same time make it self-proving with the inclusion of a notary’s signature. The other method allows a will to be made self-proving immediately after execution or even at a later time by affidavits that are separate from the will.[31]
Grounds for Nullification of a Will
When a will, or part of a will, is procured by undue influence, fraud, duress or mistake, then that will or part can be deemed invalid.
Undue influence
Definitions of undue influence vary by state. Generally, undue influence means coercion in connection with the making or execution of the will, “exercised to influence the testator.” The coercion “may be moral, physical, or mental, or all three, but the coercion exerted upon the testator’s mind must be of a degree sufficient to turn the testator from disposing of his property according to his own desires by the substitution of the will of another which he is unable to resist or overcome.”[32]
The key to undue influence is the taking advantage of one person by another, whether through the exercise of authority or by preying on a weakness of mind, needs or distress.[33]
Undue influence can be difficult to prove, because it often occurs under conditions where the testator appears to be doing what he wants. Undue influence may be accomplished over a short period of time or over years.
Proof of undue influence generally includes the following:
- There is a confidential or fiduciary relationship between the two people;
- The person exerting the influence, or someone she represents, benefits from the transaction or decision; and
- The opportunity to influence the decision existed.[34]
Factors that may be considered in determining whether a will has been procured through undue influence include the existence of a confidential, controlling, or suspicious relationship between the testator and the influencer; a weakened physical or mental condition that might cause the testator to be susceptible to influence; and disposition of the testator’s property in a way considered “unnatural” or unjust given the circumstances. Secrecy and concealment are often cited as factors, as well.
In a South Carolina case, threats by a son to place his father with terminal cancer in a nursing home and efforts by the son to restrict visits from other family members was enough evidence to support “the strong inference that he was induced and coerced to change his will making [the son] the chief beneficiary, and to so keep it until his death.”[35]
No presumption of undue influence arises from the confidential relationship that normally exists between husband and wife.[36]
Fraud or Duress
A will may be declared invalid and set aside if it is procured by a fraudulent representation or duress. Fraudulent misrepresentation means the reliance and deception of the testator deceived by the false representation.[37] The misrepresentation may be about the nature or content of the will or it may extend to fraud that induces the execution of a will.[38]
The elements of fraud include misrepresentation of a fact, knowledge of the falsity or reckless disregard as to its truth, intent to induce reliance and justifiable reliance by the testator. For example, a court invalidated a testator’s will when a beneficiary made a false statement to the effect that the testator’s “family wanted to put her in a home in order to get their hands on her estate,” so as to induce the testator to rely on the beneficiary and to make a will in his favor.[39]
There is often a presumption of fraud where the person drafting the will, such as an attorney, holds a position of trust or confidence and is named as a major beneficiary.[40]
Mistake
Mistake can include a mistake in execution or a mistake in inducement. A mistake in execution can include situations where a testator executes the wrong will, such as where a husband and wife sign each other’s reciprocal wills, or where a drafter fails to include or removes from a will provisions the testator wanted. A will that is procured by mistake in execution may be declared invalid or void, causing the testator’s property to pass under the terms of a previous will or intestacy. If a particular clause or part of the will was executed by mistake, that portion may be voided.[41]
On the other hand, a mistake in inducement occurs when a testator creates a will under a mistaken belief or fact, such as when a testator believes a living child or spouse is deceased, or when a testator believes a divorce has been finalized. Mistake in inducement generally does not invalidate a will.[42]
The Uniform Probate Code attempts to ameliorate a situation where a testator omits a child or spouse from a will from the mistaken belief that the child or spouse is dead. In such situations, the omitted person will be entitled to a share of the estate.[43] Similarly, some state statutes address the rights of an omitted child or spouse by entitling the omitted person a share of the estate.[44]
An ambiguous provision may be corrected by resolving the ambiguity with external evidence. For example, if a testator devises property to “my grandchild” but has only a step-grandchild, the ambiguous provision may be corrected if evidence is produced that indicates clearly what the testator’s intentions were.
[1] Currently, only California, Maine, Michigan, and Wisconsin have statutory wills. See Mich. Comp. Laws § 700.2519.
[2] These kinds of wills may rarely be executed by non-spouses.
[3] States that approve handwritten wills include: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Idaho, Kentucky, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.
[4] Idaho Code § 15-2-503.
[5] Texas Estates Code § 251.052.
[6] Ohio Rev. Code Ann. § 2107.03.
[7] N.Y. Est. Powers & Trusts Law § 3-2.2.
[8] Ohio Rev. Code Ann. § 2107.06.
[9] Wash.Rev. Code § 11.12.025.
[10]See 1 Murphy’s Will Clauses § 1.06 (LexisNexis 2018).
[11]In re Estate of Teubert, 298 S.E.2d 456, 461 (W. Va. 1982).
[12] Uniform Prob. Code § 2-502(c) (2010) (“(c) [Extrinsic Evidence.] Intent that a document constitute 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.”).
[13] In re Cosgrove’s Estate, 290 Mich 258, 261 (1939).
[14] Edmundson v. Estate of Fountain, 358 Ark. 302, 309 Ark. 2004).
[15] Uniform Prob. Code § 2-501 (2010); Kan. Stat. Ann. § 59-601.
[16] Some states require “sound and disposing memory” or similar. See Ohio Rev. Code Ann. § 2107.02 (2015).
[17] Mo.Rev. Stat. § 474.310.
[18] Smith v. Gold-Kaplan, 2014-Ohio-1424 at *27 (Ct. App. 2014).
[19] In re Coddington, 118 N.Y.S.2d 525, 528 (1952), aff’d 120 N.E.2d 777.
[20] Matter of Reese, 2015 N.Y. Misc. LEXIS 3388 at *9 (N.Y. Sur. Ct. 2015).
[21] Finley v. Gravely, 394 S.E.2d 847, 848-49 (S.C. Ct. App. 1990).
[22] See, e.g., Ferguson v. Ferguson, 47 S.E.2d 346, 350-51 (Va. 1948).
[23] See, e.g., In re Will of Bernatowicz, 233 A.D.2d 838, 838 (1996).
[24] See Cal. Prob. Code § 6110(b).
[25] See, e.g., Potter v. Richardson, 230 S.W.2d 672, 676 (Mo. 1952); In re Estate of Carroll, 548 N.E.2d 650, 651 (Ill. 1989).
[26] N.Y.Est. Powers & Trusts Law § §3-2.1.
[27] Vt.Stat. Ann. tit. 14, §5.
[28] See, e.g., In re Estate of Edwards, 520 S.2d 1370, 1373 (Miss. 1988).
[29] Cal. Prob. Code § 6112.
[30] Fla. Stat. § 732.503.
[31] Uniform Probate Code §2-504.
[32] Matter of Will of Liebl, 260 N.J.Super. 519, 528 (Super. Ct. 1942).
[33] Cal.Civil Code § 1575.
[34] In re Karmey Estate, 468 Mich 68, 73 (2003).
[35] Byrd v. Byrd, 308 S.E.2d 788, 790 (S.C. 1983).
[36] See, e.g., In re Estate of Glogovsek, 618 N.E.2d 1231, 1236 (Ill. 1993).
[37] Bohlen v. Spears, 509 S.E.2d 628, 630 (Ga. 1998).
[38] Dabney v. Hataway (In re Estate ofDabney), 740 So. 2d 915, 924-25 (Miss. 1999).
[39] Murphy v. Lint (In re Estate of Lint), 957 P.2d 755, 763 (Wash. 1998).
[40] In re Lances’ Estate, 14 P.2d 768, 770 (1932).
[41] See Fla. Stat. §732.5165.
[42] In re Garrison’s Estate, 374 S.W.2d 92, 93-94 (Mo. 1964).
[43] Uniform Prob. Code § 2-302 (2010).
[44] Cal Probate Code § 21620.