Will Contests – applies equally to revocable trusts

Will Contests – applies equally to revocable trusts

1. Contest = filing petition with court fighting the will or RT

   1. Brought by contestant who believes he would receive more frm estate if will were not admitted to probate

      1. Risk = you might not know how much you would have received if the will were not admitted

   2. Effect of presence/absence of No Contest Clause (NCC) in will

      1. Absence of NCC

         1. If contestant wins  contested will thrown out

         2. If contestant loses will gets admitted to probate & contested only loses time & attorney’s fees

      2. Presence of NCC

         1. If contestant wins  will is thrown out and NCC gets thrown out with it  not disinherited

            1. 
               Result is same as if there were no NCC
               

         2. If contestant loses  will is still valid & NCC is still valid  contestant disinherited  loses whatever he would have received (if anything) under that will PLUS time and attorney’s fees

         3. Partial Contest: -DON’T DO THIS!!! (rest of will is valid> still don’t get share if win)

2. No Contest Clause (NCC) – General

   1. Typically broad in scope–

      1. “anyone who contests will is disinherited, anyone who conspires to contest will is disinherited,”

      2. “contestant’s issue are also disinherited”;

      3. “contest=any attempt to invalidate any provision of the will or RT”

      4. Cross references other instruments to further disinherit other dispositive instruments of testator, such as having NCC in RT reference BFY designations) “if contest any plans, disinherited frm this will”

   2. Incentive Bequest–typically required for NCC to have teeth (if don’t have anything, nothing to lose)

3. Enforceability of NCC

   1. Public Policy Concerns

      1. Problems

         1. NCCs are harsh in effect (if broadly drafted)

            1. 
               Disinherits a broad group from one or more dispositive instruments
               
            2. 
               Difficult to know what constitutes a “contest”
               

         2. Chills legitimate contests: (1) enforce will provisions (2) ensure that will is properly managed

            1. 
               E.g. we don’t want people to profit from Elder Abuse – but NCC inhibits this contest
               
            2. 
               E.g. want to encourage action to remove executor for malfeasance–but NCC inhibits this
               

   2. Continuum of Enforceability – modern trend is moving away from enforceability of NCCs

3. Practical Note

   1. Contest entire will NOT just one or a few provisions- if partial challenge, THEN even if you win on that part, you’re still disinherited because the will and NCC is still valid

   2. Before filing petition, ask crt if it could be construed as “contest” if underlying instrument has a NCC

      1. Probably less important under New CA or UT

4. Utah – NCC not generally enforceable as a matter of public policy

   1. §§ 2- 515, 3-905– NCC is enforceable ONLY IF there is no probable cause for the contest

      1. NCC enforceable only against frivolous contests

      2. Probable Cause = ? – stat doesn’t say (probably means same as CA = rsnbl likelihood of success)

5. California

   1. New Law (Jan. 1, 2010) – § 21311 – NCC is enforceable ONLY if there is no probable cause for the contest (frivolous)  NCC not generally enforceable as a matter of public policy

      1. Probable Cause = reasonable likelihood of success

   2. Old Law – NCCs were enforceable BUT a number of statutes ameliorated the harsh effects

      1. § 21304 – NCC should be narrowly construed

      2. § 21305–certain actions are not deemed contests; public policy want to encourage some actions

         1. 
            E.g. action to challenge exercise of fiduciary power ≠ contest
            
         2. 
            E.g. action regarding appointment or removal of fiduciary ≠ contest
            
         3. 
            E.g. action regarding an accounting or report of a fiduciary ≠ contest
            
         4. 
            E.g. action to clarify or interpret a provision in the will ≠ contest
            

      3. § 21307– NCC not effective to disinherit someone that brings an action under § 6112 (Interested Witness) OR under § 21350 (Disqualified Person)  § 6112 & § 21350 actions ≠ trigger NCC

      4. § 21320– Declaratory Relief can be offered to ppl deciding whether a petition would be a contest

         1. 
            If not sure whether filing certain petition would = contest file Declaratory Relief petition with proposed petition attached
            
            1. 
               Crt will read petition you propose to file & say whether proposed petition = a contest
               
            2. 
               Problem = courts end up being flooded with Declaratory Relief petitions
               

6. Examples

5. Formalities of Execution – how was the will signed?

   1. Formalities of will execution DO NOT apply to revocable trusts

      1. Revocable trust valid if Settlor simply signs the trust instrument

         1. BUT pour over will REQUIRES will execution formalities (e.g., Settlor’s & 2 witnesses signatures)

      2. Rationale

         1. Wills have a long history of common law

         2. RT are relatively new instruments – they don’t have common law carry-over requirements

   2. Types of Execution – offer different levels of protection for the ways in which documents become effective

      1. Oral – agreement that is not reduced to writing (as long as it does not violate Statute of Frauds (ie. real prop)

      2. Signature Only – document valid when reduced to writing and signed

      3. Witness – document valid when reduced to writing, signed, and there are witnesses to the signature

      4. Notarization: Two things Notary can do:

         1. Acknowledgment– notary signs & puts his stamp on doc to verify it’s the correct signature

            1. Notary public needs to be satisfied through some proof that person who signed document really is the person he/she purports to be

         2. Jur At Notary Procedure– swearing under penalty of perjury that info in the document is accurate

            1. Very different than notary public simply verifying the signature

   3. Reasons for Formalities of Execution

      1. Protection from forgery

      2. Impress some level of finality

         1. Ensures that this document is the final version and just a preliminary draft

         2. Impresses the sense of finality on the person signing document – i.e., by fixing signature you are doing something that has a legal consequence

      3. Provide safe harbor for person who is signing – person knows that document/agreement is effective/valid b/c he/she has complied with prescribed procedures

4. Witness Requirements for a Will

   1. General Requirements

      1. Must be 18 years old (UT – § 2-501; CA – § 6100(a))

      2. Must fulfill general witness requirements (as in FRE) (able to observe, recall, and recount, competent)

   2. Common Law – 2 witnesses needed (carry over from Statute of Wills) – codified by most states

   3. Utah – § 2-502 – will needs 2 witnesses

      1. Sufficient if each witness (and they can do it independently) signs w/in a reasonable amount of time after he/she sees the testator sign the will OR acknowledge his signature OR acknowledge his will

         1. By signing, witness is saying they

            1. 
               Saw testator sign;
               
            2. 
               Saw testator acknowledge his signature; OR
               
            3. 
               Saw testator acknowledge the document as his will
               

         2. “Reasonable period of time” – could be done after testator dies (based on UProb.Code comments)

         3. DOES NOT matter if an interested witness signs will

   4. California – § 6110 (c)(1) – will needs 2 witnesses – more strict than UT

      1. Witnesses MUST sign in each other’s presence at the same time during the testator’s lifetime after they see testator: sign will OR acknowledge his signature OR acknowledge his will

         1. Practically: have testator & 2 witnesses be in same room at same time so all see each other sign

      2. NOTE: witness who receives a bequest under will (interested witness) faces rebuttable presumption that will was subject to undue influence § 6112

         1. Interested witness=exclusive to CA – under Uniform Probate Code (UT) it DOES NOT matter

5. Witness Testimony

   1. By signing, witnesses is saying they are available to appear as a witness in court, what if dead?

      1. 2 witnesses (at least 1 alive?)

      2. Attestation Clause (see below) (BUT witness may still have to appear in crt or prepare affidavit)

   2. Three methods of testifying

      1. Affidavit – witness can sign an affidavit after testator dies that is submitted to court

         1. Affidavit says “I saw the testator sign” under penalty of perjury

         2. Benefit = witness does not have to be dragged into court; BUT still have to survive testator

      2. Attestation Clause – usually seen in older wills

         1. Witnesses sign statement at the time they signed will saying “we saw testator sign” but not under penalty of perjury  not self-proving b/c not done under affidavit procedure

         2. Created a rebuttable presumption that the will was properly executed

      3. Self-Proving Will – what everyone uses now

         1. Process = testator signs, 2 witnesses sign, and notary signs (using Jur At procedure)  creates a conclusive presumption (absent fraud) that will was properly executed

            1. 
               Witness essentially signs the affidavit at the time they sign will “under penalty of perjury”
               

         2. Benefit=Self-provid. affidavit language in will itself> no need for witness’s affidavit after T dies

6. Holographic Wills – do NOT need witnesses to be valid

   1. Holographic will = a will that is in the testator’s handwriting & signature no need for witnesses

   2. Material Portions of will that MUST be in testator’s handwriting

      1. Signature

      2. Material provisions of the will = dispositive (who-gets-what) provisions

         1. Ok if lots language is typed (words “I give”) as long as actual dispositive> in testator’s handwriting (e.g.,. “my house to X”)

   3. Statutes

      1. UT – § 2-502(2)

      2. CA – § 6111 (More details about when will=invalid & statements of T’s intent)

7. Substantial Compliance Statutes

   1. Benefit=greatly facilitates validating more wills & not have wills invalidated cause of small technicalities

      1. But you don’t want to rely on these stats especially since will execution stats give you a safe harbor

      2. NOTE: SC in UT & CA applies to both holographic and typed wills, amendments/codicils; NOT revocations; Revival? Unclear—only applies to methods of a will’s execution

   2. Substantial Compliance Stats – allow a will to be valid if you can establish by clear and convincing evidence that testator intended instrument to be his/her will  permit substantial compliance w/rules

      1. CL–rejected sub. comp. will had to conform to strict rules OR valid holographic will or INVALID

      2. Historical Development

         1. Traditional SC stat= “Near Miss”–how close did you substantially comply w/will requirements?

            1. 
               Problem = hard to know what a near miss is
               

         2. Modern Trend = Dispensing Power statute  look to testator’s intent

            1. 
               Did testator intend for this to be his/her will?
               
            2. 
               Burden of proof = clear & convincing evidence (75%) that testator intended this to be his will
               

      3. Dispensing Power Statutes

         1. UT – § 2-503 (broader than CA)

         2. CA – § 6110(c)(2) – effective Jan. 1, 2010 – NO substantial compliance statute prior to this date

8. Codicils

   1. Codicil = amendment to a will

      1. Rules are the same for codicils as they are for wills

         1. Codicils need to be holographic, comply w/will execution stats, OR comply w/sub. comp. stat

      2. NOTE: codicil can be in a different form than will (e.g., typewritten will and a holographic codicil)

   2. Ex–T typed up valid will & later writes in margin a new disposition (e.g., “I give my antique table to X”)

      1. Analysis – is codicil valid?

         1. Does it conform as a valid will under UT § 2-502(1)(c) or CA § 6110?

            1. 
               No, T just scribbled it in the margin – did not sign or have witnesses
               

         2. Is it a valid holographic codicil?

            1. 
               No, T did not sign after the sentence – if he had signed, it would have been valid
               

         3. Result=sentence is as if it never existedwill=still valid but added sentence=invalid codicil

         4. BUT, would sentence be valid under substantial compliance doctrine?

            1. 
               Evidentiary ? – if can show by clear & convincing evid T intended sentence to be a codicil to his will  sentence would be a valid codicil
               

   3. Republication by Codicil

      1. CL doctrine = when a codicil to a will is signed, the underlying will itself is effectively republished as of the date of the codicil and effectively re-dated as of the date of the codicil

1. Reciprocal Wills (aka Joint and Mutual Wills)

   1. Reciprocal wills = wills signed by husband & wife that essentially have mirror/reciprocal provisions

      1. Each sign a will that leaves all to surviving spouse, but if he/she does not survive me, then all to X

      2. Problems = when first spouse dies, the surviving spouse gets all the property but can now dispose of all the property however she wants to  this is not what the couple intended

         1. Solution: BFY K claim; or Irr. Trust (exists for benefit of serving Surviving spouse > then to son; surviving spouse could still give her prop to someone else- but not other spouse’s prop)

      3. Takeaway = reciprocal wills are bad  DO NOT use them

   2. Reciprocal Wills are NOT contracts (UT § 2-514; CA § 21700)

      1. Merely having reciprocal wills DOES NOT prevent surviving spouse from changing will later and DOES NOT create any rights in 3rd party BFYs because no K ensuring BFY receives anything

      2. NOTE: Ks to make wills are valid BUT mere fact that have reciprocal wills DOES NOT create a K

         1. Need something more than reciprocal wills to create a K (EX: Caretaker contracts for what he wants in exchange for caring for person> make will K)

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