WILLS
1) Formalities (UPC)
A will consists of a testator promising to devise his assets to a beneficiary at the time of the testator’s
death. A will may be executed if it meets the following requirements, as recognised in most states.
First, the testator must have had capacity to make the will at the time it was executed. This includes
being over 18 years of age and having due mental capacity. Second, the testator must have had present
intent to create the will. Like trusts, his intent must have been to create a will immediately, not in the
future. Third, the testator must have signed the will and created the will in writing. Some states allow
another party to sign for the testator instead, so long as the testator was present and directed the party
in signing the will. Most states require the testator’s signature anywhere on the will, but a few states
still require his signature at the end of the will. If he signed it elsewhere, some states still permit the
validity of the will, but any provisions following his signature will be void. Also, the UPC and most
states still recognise a will not made in writing, but in a holographic form. In this case, the will must
still include the testator’s signature and the material provisions included to be a valid will. Fourth,
the testator must have signed the will in front of at least two attesting witnesses. If the witness is a
beneficiary, today the legacy to that beneficiary will be rendered void and the rest of the will as valid.
This is a departure from the common law which would have rendered the entire will as void, unless
there was another beneficiary in the will. However, some states still save the witness’ legacy if the
witness would have been an heir to the testator anyway. In this case, his share will pass to him as
though he is inheriting from the testator. Otherwise, the testator’s share will pass to his heirs by
intestacy or to his residuary estate if he has a residuary clause in the will. Also, some states recognise
a will even if it was not signed in front of two witnesses. Most states today follow the ‘conscious
presence’ test, which requires that the witnesses must have been consciously aware of the testator’s
location and actions at the time of executing the will. Even if they were not aware, a few states apply
the ‘scope of vision’ test, which only require that the witnesses were within close proximity of the
testator at the time of writing the will and they would have been aware of his actions, rather than
having actual knowledge. Lastly, both witnesses must have signed the will as well, in the presence of
the testator. Although all of the formalities may not have been met, the harmless error test may still
recognise a valid will if there is clear and convincing evidence that the testator intended to create the
will.
However, where there is a conflict between the governing laws of the validity of a will, the applicable
law will depend on the type of property to be devised. For real property, the law of the jurisdiction
where it is located (situs) will apply. For personal property, the law of the jurisdiction where the
testator resided at the time of his death will apply.
An issue may arise where a foreign will made outside of the state where it is subject to probate. In
this case, the foreign will may still be valid if it was executed under the law of the state where the
testator resided at the time of executing the will or at his death, or where the will was executed.
2) Components
A testator does not have to meet the formalities of a will to devise property to a beneficiary. A testator
can also make a contract to transfer a gift by will. However, the contract must meet the formalities of
a contract under contract law, including an offer, acceptance and consideration. If the testator
breaches the contract, the beneficiary can request the testator to continue performing the contract until
the testator dies and his assets be delivered to the beneficiary. If the testator breaches the contract
after the beneficiary has carried out substantial performance, the beneficiary can sue for damages and
, quantum in meruit. If the testator repudiates the contract after the beneficiary has substantially
performed, the courts may impose a constructive trust in equity for the benefit of the beneficiary
rather than forfeit the testator’s property.
A testator can create a new will to replace certain provisions in an existing will. This is known as a
‘codicil’. The new will must meet the formalities of a will, including the testator’s signature and
witnesses’ signatures, both witnessed. A codicil may be intended to republish the will by replacing
any conflicting provisions, but the consistent provisions in the original will shall remain. The new
will shall be dated when the codicil was executed, not the original will. A codicil may also be intended
to incorporate an existing will by reference impliedly, in which a will exists and the codicil may be
incorporated into it, so long as there is clear and convincing evidence the testator intended to
incorporate it.
There are two ways in which a will may be created by separate components. Incorporation by
reference involves incorporating an existing document into an existing will. This requires three
elements. Firstly, the document must have existed at the time the will was executed. Secondly, the
will must have specifically referred to the document. Alternatively, the testator could argue that it
made reference to a document but not specifically. However, because there may be no other existing
document except for the concerned document, that document should be incorporated. Lastly, the
testator must have had intent to incorporate the document.
Whereas integration involves combining several documents to create a will, rather than incorporating
them into an existing will. This requires two elements. Firstly, the documents must have existed at a
similar time. Secondly, the documents must show the testator had an intent to integrate them together.
This may be evidenced by the physical attachment of the documents, the coherent page order of the
documents, an existing dispositive plan appearing in the documents, or even any extrinsic evidence
or witness testimonies.
3) Construction problems (ALS/SS/USDA/RSDA)
An issue arises where the beneficiary entitled to inherit property from a testator died before the
testator’s death. Generally, the gift will be considered to have lapsed, in which the gift will pass to
the testator’s heirs, his residuary estate if he has any, or other surviving beneficiaries in a class gift.
However, the Anti-Lapse Statute may save the gift, if recognised in some states, if the predeceased
beneficiary is a descendent of the testator, or his grandparents’ descendants. If so, the gift will pass
to the predeceased beneficiary’s heirs, only if they survive the beneficiary.
An issue arises where the gift to be bequeathed to the beneficiary disappears before the testator’s
death. This is known as ademption. This only applies to specific bequests, in particular, real property.
If part of the property was sold, the remainder may still pass to the beneficiary. Also, some states
follow the equitable conversion doctrine, whereby the sale proceeds will pass to the beneficiary as
personal property. If the sale proceeds were used to purchase another property, that property will then
be added to the testator’s residuary estate from which any entitled beneficiaries can inherit from.
An issue arises where improvements are made towards the property to be devised and whether the
beneficiary should be entitled to them. These are known as accessions. If improvements were made
before the testator’s death, the value of those improvements will pass to the beneficiary, but any
income made after the improved asset will pass to the testator’s estate instead. For instance, testator
promised to bequeath his house to his son. Testator’s house improved by $10,000. His house made
$5,000 in rental income afterwards. Testator’s son will inherit the $10,000, but the income will pass
