Flyover 2 - Will Validity

Will Validity

Will questions pop up slightly more often than intestacy issues on the MEE. For the rest of this lesson, we're going to talk about what makes a valid will. This is the most commonly tested will subject on the bar. So, to make a valid will, you need three things: (1) testamentary intent, (2) testamentary capacity, and (3) compliance with the state wills act formalities.

If you don't have the required intent, capacity, and formalities, your will isn't valid. The court won't probate the document and your stuff will pass according to the intestacy rules. We're going to talk about all of the requirements in some depth, but let's begin with a look at the formalities.

Formalities

Everyone who makes a will must comply with a set of formalities laid out in state law. There are three big formalities that the testator, the person making the will, must complete. Every will must have a writing, the testator's signature, and witnesses. The first thing you need is a writing. Most states don't define writing, but what we're looking for is something printed, typed, or handwritten on a tangible medium, usually a piece of paper.

Second, the person making the will needs to sign the document. Courts interpret the signature requirement really broadly. A signature is any mark that the testator intends to authenticate a document. I've seen documents signed with all kinds of weird nicknames: Big Dog, Mother, Aunt Snooki. They're all fine. The final requirement is that two people must witness the testator signing the document and then sign the document themselves.

Now, two issues can pop up with witnesses. First, many states require that the testator and witnesses all sign the document in the presence of each other. In these states, the witnesses and the testator all need to be together when they sign the document. This presence requirement sometimes causes problems.

For example, imagine that Alice invites her two friends, the Cheshire Cat and the White Rabbit, to her house to witness her will. What if the rabbit's view of the document is blocked by a giant lamp? If the rabbit doesn't actually see Alice sign, have the formalities been complied with? Is the will still valid?

Conscious Presence Test

Most states use something called the conscious presence test to solve these issues. Under the conscious presence test, the witnesses must be able to use their senses to understand what's happening in the room, but they don't actually need to see the testator sign.

Line of Sight Test

Some other states use something called the line of sight test. In those jurisdictions, the witness needs to be located in a position where they could see the testator put pen to paper if they were looking in the testator's direction.

Let's flesh out our hypo. So Alice has asked the White Rabbit and the Cheshire Cat to witness her will. As Alice signs, the Rabbit is standing behind a floor lamp and can't see the signature. The Cheshire Cat is sitting right next to Alice, but he sneezes quite violently at the moment Alice signs. Are either the White Rabbit or the Cheshire Cat in Alice's presence?

In a conscious presence state, both the Rabbit and the Cat are considered to be in Alice's presence. Using their full array of senses, they know what's happening in the room and what Alice was doing. In a line of sight test, however, the Rabbit would not be a valid witness. He was behind the lamp and not able to see Alice sign. The Cheshire Cat would count as a valid witness because he could have seen pen to paper if he hadn't sneezed, if he had been looking in the right direction.

One other witness problem occasionally pops up on the bar exam. Witnesses need to be disinterested. Disinterested means that the witness should not receive any gift under the will. Do you see why? Imagine Alice leaves the Rabbit her best watch in her will. If the Rabbit is a witness to the will, we can't really trust his testimony about what happened during the will execution ceremony. The Rabbit has incentive to say that everything was fine in order to get the watch.

In the olden days, a court would invalidate the entire will if any of the necessary witnesses were also beneficiaries. Today, we don't do that. Today, most states have what's called a purging statute. A purging statute will uphold the final testament, but it requires the witness to forfeit any gifts that they've received under the will.

Now, in most states, the rules on all this stuff are quite harsh. If you don't strictly comply with all of the formalities, the will is invalidated. For example, if Alice only has one witness sign her will, the document won't be probated. Why? Because the requirements say you need two witnesses.

Holographic Wills

About half the states recognize a small exception to the witnessing formality. It's called a holographic will. Not a hologram, a holograph. A holographic will is a will that's handwritten and signed by the testator, but it's unwitnessed. State statutes basically allow the testator to get around the witnessing requirement if they take the time to handwrite their will. So, if you're taking the bar and you see a will-like document that's handwritten, that's a red-light, sirens-blaring warning that you're probably dealing with a holographic will.

Testamentary Intent

Okay, now, putting the formalities aside, the second requirement to make a will is testamentary intent. What's that? For a will to be created with testamentary intent, the testator, Alice, must think that the document she's signing has the power to distribute her property at death. It's not enough to present evidence of what Alice intended to do with her property. The proponent of the will must show that Alice thought the document that's being probated would have legal effect upon her death.

For example, imagine that Alice writes a letter to her lawyer that reads, "Make a will for me. Leave everything to the Rabbit and cut out my parents." If Alice dies the next day, can Rabbit submit the letter as a will? No way. Alice did not have testamentary intent. She didn't think that letter was a will. It was nothing more than instructions to her lawyer.

Now we'll change the facts. Imagine that Alice sends Rabbit a handwritten letter that says, "Dear Rabbit, I want you to have all of my things when I die. Keep this letter. It will help you when I'm gone. Best, Alice." Even though this letter isn't labeled a will, a court will probably probate it as a holographic will. In this example, Alice seems to think that the letter will have legal effect after her death. She thinks the words are a final testament. Therefore, she had testamentary intent.

Testamentary Capacity

Now, the last requirement to make a will is testamentary capacity. This has two quick subparts: legal capacity and mental capacity. Legal capacity is easy. To make a will, you need to be 18. A baby can't make a will. Mental capacity is trickier. The basic idea is that a person who makes a will can't be crazy. If we think Britney Spears isn't in touch with reality, then we shouldn't let her give away her assets.

The goal of the law is to protect people with severe mental disabilities or dementia from themselves. But how do we know who's crazy and who's merely eccentric, especially when there's rarely a doctor around when people make their wills?

The test for mental capacity is that Alice, our testator, must be capable of knowing and understanding three things: (1) the nature and extent of her property, what she owns; (2) the natural objects of her bounty, that means who are the people that society would expect to receive a share of her estate; and (3) the disposition of her property, what's the will doing?

So, really, what we're asking is, do any of Alice's actions cast doubt on her ability to understand what she's got, who she loves, and where she wants her property to go? In general, the party contesting the will has the burden of showing that the testator lacked capacity. What kind of evidence can they present?

Well, testimony from friends and family members about the testator's actions is often critical. If Alice thought people were living in the walls of her house, or if she couldn't remember what year it was, that suggests she might not be capable of making rational decisions. Medical records, too, play an important role. A diagnosis of Alzheimer's or any other form of dementia is strong evidence of a lack of capacity.

Note, however, that eccentric behavior, mean-spiritedness, or brief moments of forgetfulness aren't enough to demonstrate a lack of capacity. For example, if a testator eats a bologna sandwich for every meal or repeatedly says they hate children, that's certainly idiosyncratic behavior, but that conduct doesn't reveal much about their capacity to understand the world around them.

Insane Delusion

Before moving on, I want to quickly highlight that there are a few other ways to challenge the validity of a will. First, there's a doctrine called insane delusion. You can think of insane delusion as a subset of mental capacity. To be a little glib, a general lack of capacity means you're crazy all over. An insane delusion means you're just crazy about one small thing.

For instance, if Alice desperately believes that the Earth has been invaded by an army of space leprechauns, but she's otherwise a high-functioning person, she probably has an insane delusion. What's the legal test for this? The Third Restatement says an insane delusion is a belief that is so against the evidence and reason that it must be the product of derangement.

Basically, the person challenging the will must show that the testator's belief is (1) false, (2) irrational, and (3) explainable only as the product of mental disorder. Importantly, here, an insane delusion is different from a mistaken belief. A mistake can be corrected if the testator is told the truth.

There's another important aspect to insane delusion. If Alice had an insane delusion, a court would not automatically strike down her entire will. Instead, the will isn't valid only to the extent that it is materially affected by the insane delusion.

That means that the party contesting the will needs to show both that Alice believed in space leprechauns and that she left all or part of her property to a group associated with the space leprechauns. If Alice left her entire estate to her devoted spouse, her will is still perfectly good, even if she believed in the space leprechauns.

Undue Influence

In addition to capacity problems, the bar examiners occasionally write a fact pattern that implicates the undue influence doctrine. A will is not entitled to probate if it is the result of undue influence. Undue influence is a little bit tricky to understand. We influence each other all the time.

For example, imagine that the dean of your law school asks Jeff Bezos to leave a million dollars to the university. The dean is most certainly trying to influence Jeff Bezos. The dean may be incredibly persistent about this request, calling Bezos multiple times a day and offering to name the law school after him.

If Bezos dies tomorrow, and it's discovered that he left $10 million to the law school, has the dean committed undue influence? Probably not. Why? Because we think that Jeff Bezos is mentally strong enough to resist the dean's badgering. He's free to accept the offer, but he's also in a position to walk away or block the dean's calls.

It's totally fine for a beneficiary to influence a testator. Influence only becomes a problem if it stems from fear, coercion, or trickery. Imagine this time that Jeff Bezos grows old. He's very weak and never leaves the house. Bezos has a caretaker who feeds him, gives him his medicine, and does all his errands.

The caretaker suggests again and again that Bezos should execute a new will to benefit him. The caretaker then finds a lawyer who helps Bezos write a new will that does just that. This looks much more problematic. In this example, Bezos may have felt that he had no choice but to change his will. Or maybe the caretaker's repeated suggestions confused the elderly multibillionaire.

Now, unfortunately, it can be very difficult to figure out where normal influence ends and problematic control begins. To untangle this web, most states now use a burden-shifting approach. The person challenging the will under undue influence must show the existence of (1) a confidential relationship between the testator and the alleged wrongdoer, and (2) suspicious circumstances.

Let's talk about this test. A confidential relationship is a relationship of special trust and intimacy, where the parties think that each has the other's best interest in mind. It's a relationship where you have your guard down. Some examples would be a fiduciary relationship, a doctor-patient relationship, or a caregiver relationship.

Now, what are suspicious circumstances? Well, there's no definitive list, but a few things come up again and again. The classic suspicious circumstances are the testator having a weakened mind, the testator making an unnatural distribution of assets, the beneficiary being involved in the making of the will, and sudden and radical changes to the testator's estate plan.

If the person challenging the will can establish a presumption of undue influence, again, a confidential relationship and suspicious circumstances, the case isn't over yet. At that point, the burden shifts to the alleged wrongdoer. They then have an opportunity to show that the testator acted freely and voluntarily.

Fraud

Moving on from undue influence, fraud is the final ground to contest the validity of a will. To succeed in a fraud claim, the will contestant must show four things: (1) that someone, almost always a will beneficiary, knowingly made false statements; (2) they made statements intending to deceive the testator; (3) the testator was deceived; and (4) the misrepresentation caused the testator to change their will.

Fraud claims are really hard to prove. First and foremost, the will contestant must show that the speaker knew the statement was false and that they intended to trick the testator. It's hard to peer inside someone's head and divine their motivations. Moreover, the will contestant must demonstrate that the testator changed their will because of the false statement and not for some other reason.

For example, imagine that Jeff Bezos marries Madonna. They live together happily for 30 years. Bezos leaves Madonna everything in his will, but unbeknownst to Bezos, Madonna lied about being single. She was actually married and seduced Bezos as part of a bet. Is this fraud?

Madonna certainly made false statements. She intended to deceive Bezos, and Bezos fell for the scheme. However, has the misrepresentation caused Bezos to change his will? Arguably, Bezos left Madonna his money not because they were married but because they lived together happily for 30 years. Fraud is tough.

One final point. As a general matter, failure to disclose is not fraud. Lying is legally sanctionable, but keeping your mouth shut isn't.