Different Jurisdictions – what happens if you sign a will in state A and then die in state B?

Incorporation by Reference

1. Common law – you could incorporate another document into a will by reference ONLY IF

   1. The document existed at the time the will was signed; AND

   2. The will specifically, clearly identified the other document that it purported to incorporate by reference

2. Statutes – codify CL rule (UT § 2-510; CA § 6130)

   1. Ex. Can incorporate typed doc to holographic, UNLESS material, dispositive provisions included in typed

      1. BUT could argue incorporation was signed and in own handwriting, so that’s enough

3. TPP Exception – tangible personal property (TPP) exception: will can incorporate another document that disposes ONLY of TPP even if that other document does not yet exist at the time the will is signed (other document must refer to itself as the list referred to in specific paragraph of specific will)

   1. UT – § 2-513 (No Monetary Limits!):

      1. Writing still needs to be signed by the testator

      2. Writing must describe items and devisees with reasonable certainty

   2. CA – § 6132:

      1. Any document MUST be signed AND dated by the testator

      2. Imposes monetary limits

         1. No item in the list can be worth more than $5K

         2. Total amount of property on the list CANNOT exceed $25K

Acts of Independent Significance

1. Common Law – wills can include provisions regarding acts of independent significance (whether they occur before or after will’s execution or T’s death)

   1. Rationale – T not acting to make estate plan changes; T’s acting for independent reasons w/ind. significance

   2. Examples

      1. “I leave $10K to everyone who I employed at the time of my death.”

         1. Problem = you could dramatically alter estate plan by hiring/firing people BUT T likely is not hiring/firing just to make estate plan changes  hiring/firing for independent reasons

      2. “I leave X my collection of antique cars”

         1. Problem = you could dramatically alter estate plan by buying/selling cars BUT testator likely is not buying/selling cars just to make estate plan changes  buying/selling for independent reasons

2. Statutes – codify CL will can have acts of independent significance provisions (UT § 2-512; CA § 6131)

Revocation of Wills

1. Three ways to revoke a will (UT § 2-507; CA § 6120)

   1. Express–most common: sign new will that expressly revokes “I hereby revoke prior wills & codicils”

   2. Inconsistency – older bequest is revoked by a subsequent inconsistent bequest later will governs

      1. E.g. prior will says “I give table to X” and newer will says “I give table to Y”  Y gets table

      2. NOTE – frequently even if a will did not expressly revoke a prior will, a subsequent will usually will revoke a prior will by inconsistency if that subsequent will contains a residuary clause

         1. Residuary clause of newer will> essentially disposes of rest of the prop any bequest made in any prior will has thus been revoked by inconsistency through residuary clause of newer will

   3. Revocatory Act – any act done with the intent to revoke a will is sufficient to revoke a will

      1. E.g. writing “void” across face of will, drawing “X” through will, crossing out will

      2. E.g. “burning, tearing, obliterating, some destructive act”

2. Dependent Relative Revocation (DRR) (mistakenly revoked)

   1. CL doctrine (not codified, but accepted in most states)= treats old will as not having been revoked in the first place if old will was destroyed ONLY on reliance on a newer but invalid will

      1. If revoking will based on a mistaken assumption that a newer will would superseded it (e.g., newer will turns out not to be valid), then the older will has not been revoked

      2. MUST show: only reason old will was torn up was b/c testator thought new will would be valid

         1. SO: if new will completely revises dispositive plan, DRR DOES NOT apply b/c you don’t know that reliance on new will was the only reason the old will was torn up

         2. NOTE: As a general rule for mistake of fact to work, that mistake will have to be stated in the will itself (Extrinisic evidence won’t work)

   2. Effect of Substantial Compliance Stats: SC would validate newer will if can be shown by clear and convincing evidence that T intended will to be new will rare that DRR will be an issue in future

   3. Examples

      1. Classic Case = Ts lawyer drafts new will; T signs new will but no witnesses  new will> not valid (assuming no SC stat); T goes home & tears up old will; DRR says that b/c she tore up her old will on assumption that new will would be valid>revocation of old will never really happened

         1. Old will not revoked b/c T purportedly revoked it on mistaken assumption that new will=valid

         2. NOTE:SC rules would try to validate newer will so SC stats make this classic case very rare

      2. Mistake Recited in Instrument= if new instrument that revokes old will expressly contains some mistake of fact or law, then the older bequest will be treated as not having been revoked

         1. Ex “I give table to Y b/c X is dead” but X is not dead  older bequest of table to X>still valid

10. Revival of a Will

1. Rebuttable Presumption= prior wills are not revived if a subsequent will gets revoked by revocatory act UNLESS you can show that the testator did want the prior will to be revived (UT § 2-509; CA § 6123)

   1. Can rebut presumption by showing that T did want a prior will to be revived

   2. Exception – UT only (§ 2-509(2)) Presumption shifts if subsequent will revoked prior will only in part AND subsequent will was revoked by act

      1. Rebut. Presump.=whole will revived UNLESS can show T wanted otherwise

         1. 
            Still ONLY a rebuttable presumption> can be rebutted by showing of T’s intent
            
         2. 
            NOT an exception in CA
            

2. Ex– T has will #1 (valid) & then executes will #2 (valid) that expressly revokes will #1; T revokes will #2 by act  will #1 DOES NOT get revived UNLESS can show T did want will #1 to be revived (#4 above)

14. Rules of Construction

2. Overview

   1. Rules of Construction=default for interpreting wills or RT if extrinsic evidence not allowed /unavailable

      1. If will or revocable trust tells you what to do  ALWAYS follow the governing instrument

      2. If will or revocable trust silent AND there’s an ambiguity (NOT enough if just mere drafting error):

1. FIRST ask if there’s any admissible extrinsic evidence that helps clarify the ambiguity

   1. If YES, allow it! If it clarifies, you’re done; If it doesn’t or there’s no extrinsic evidence available, then

2. SECOND  follow the rules of construction

1. Types of Bequests

   1. Specific = gift of specifically identified property (e.g., car or all money in wells fargo account to X)

   2. Pecuniary/General = gift of a $$ amount (only dollar, not stox or bonds)

   3. Demonstrative – gift of a specific amount of $$ (or stox) to be paid from a specifically identified account

1. Problem = if account doesn’t have enough money to cover bequest

2. Resolution = X gets all in account and then gets the remainder from somewhere else in estate

   1. E.g. “I leave X $100K to be paid frm my account at Zions”  if there is only $80K in account at death, then X gets $80K plus $20K from some other source in estate

3. Analysis:

   1. Enough cash in rest of estate? Use that to pay rest of demonstrative

   2. If not enough cash, use other property in the estate

   3. If not enough prop to pay all pecuniary gifts, abate amounts pro rata

1. Residuary = gift of everything else

2. Pregatory= leave prop to someone & request that they do something with it, but non-binding request

3. Non-monetary GOL (gifts of love)

1. Extrinsic Evidence

   1. Extrinsic Evidence= evidence from outside the 4 corners of will for purposes of interpreting the will

      1. Arguments to admit it

         1. Ambiguity in will

         2. Testator’s intent – maybe will not best evid; want to let all evid in that’ll help discern intent?

         3. Could be Mistake in will

      2. Arguments to exclude it– these arguments are more persuasive than admissibility arguments

         1. Will itself = best evidence of T’s intent

         2. Reliability/probative value is questionable: 1) did testator really say that? 2) maybe said what he said to fool family members into thinking their BFY’s when didn’t want them to be

         3. Efficiency- (more unwieldy and long process) Flood of litigation

         4. Safe harbor–T has right to feel confident>properly executed will=final word on estate distrib.

         5. Judges and juries are really not in a position to rewrite a will

         6. Judicial bias–allow extrinsic evid gives judge chance to dispose of will how he thinks is best

   2. CL Plain Meaning Rule: if will is not ambiguous, CANNOT allow extrinsic evidence to supplement OR alter will. Usu. EXCLUDE extrinsic evidence, UNLESS:

      1. Used to interpret an Ambiguity  rule does not allow in very much extrinsic evidence

         1. If language not ambig CANNOT allow in evid even if it shows T intended otherwise and it’s just an attorney mistake

         2. NOTE: silence in instrument can = ambiguity

      2. Types of Ambiguities

         1. Patent ambiguity (obvious; on its face; leave 1 thing to 2 diff ppl)evid admissible to clarify

         2. Latent ambiguity (terms of will seem clear but are not when you go to distribute property)  cases often lead to absurd results

            1. 
               E.g.“Leave table to niece A”; but T has two nieces named A OR never had niece named A
               

   3. State Rules

      1. UT = traditional common law plain meaning rule

      2. CA = Russell – (cat=Roxy) CA tried to expand PMR, but still no different from traditional CL

1. If there is a patent ambiguity  let extrinsic evidence in

2. Latent ambiguity – you can allow extrinsic evidence in to reveal a latent ambiguity

   1. 
      If claim latent ambiguity, can use extrinsic evidence to reveal that ambiguity & resolve it
      
   2. 
      BUT still have to find an ambiguity in will before can use extrinsic evidence to interpret it
      
      1. 
         Will’s language has to be susceptible to 2 or more meanings before> allow ext. evid
         

1. Problems with PMR:

1. Doesn’t account for cases when will is not ambiguous but is just plain wrong:

   1. Mahoney – T wanted property to go to 25 cousins but will said “$ goes to T’s heirs”

      1. 
         Problem = aunt was heir, not cousins
         
      2. 
         Extrinsic evidence = clear that attorney made a mistake during drafting
         
      3. 
         Result = court applied plain meaning rule  aunt got property b/c will had no ambiguity
         
      4. 
         Remedy = cousins could sue attorney for malpractice
         

   2. Gustafson – T wanted property to go to children of his friend E but will said “E’s heirs”

      1. 
         Problem = E’s heir was E’s wife
         
      2. 
         Result = crt applied plain meaning rule  E’s wife got property b/c will had no ambiguity
         

   3. Scottish–T wanted prop to go>Scottish Society for Children but will said Society for Children

      1. 
         Extrinsic evidence = clear that attorney made a mistake during drafting
         
      2. 
         Result = crt applied PMRprop went to diff. charity than what T wanted> no ambiguity
         

1. Crts get all confused with what an ambiguity is:

1. USC/UCLA-Black–will said “Leave $100K to Univ. of Southern Cali. known as UCLA”

   1. 
      Result= crt applied PMRprop went to UCLA; NOT ambiguous-T meant univ. in southern CA
      

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