Flyover 3 - Components of a will

Components of the Will

The theme of this lesson is what documents count as part of your will. Is it possible to amend your final testament, and what are the legal consequences of doing so? What documents count as part of your will?

Integration

The basic black-letter law is easy to summarize. All papers present at the will execution ceremony and intended to have testamentary effect are integrated into the will. When a will is executed under the supervision of an attorney, this is rarely an issue. The pages are always secured with a staple.

However, when people make their own wills, problems occasionally pop up. Imagine, for example, that Cinderella makes her own will. After she dies, her children locate the document in her desk. They find two pages of paper folded together, but they're not stapled. Are both sheets of paper part of the will? How do we decide?

Courts look at a number of things to solve these kinds of problems. Are the pages numbered? Does the text flow from one page to the next? Are the pages consistent or do they contradict each other? And where has the testator placed the signature? Now, these issues are very fact-dependent, and you'll need to wrestle with the details on the MEE.

Incorporation by Reference

Now, moving on to a related issue. What if Cinderella writes in her will, "All of my jewelry should be distributed according to a list I keep on my nightside table." If this list of jewelry doesn't have separate testamentary formalities, if it wasn't signed by Cinderella or witnessed, and the list wasn't present at the will execution ceremony, is there any way to carry out Cinderella's wishes?

The answer is yes. The doctrine of incorporation by reference provides a limited method of giving testamentary effect to documents outside the will. The basic idea is if a will mentions a document, it is incorporated into the testamentary scheme.

Traditionally, to incorporate a document, you needed to show three things: 1) the outside document must be in existence and complete when the will is executed, no later modifications; (2) the will must manifest a clear intent to incorporate the document; and (3) the will must clearly and specifically describe the document to be incorporated.

Under this test, just about any document can be incorporated into a testator's will. Cinderella could write, "Please distribute my assets according to the terms of Rumpelstiltskin's last will and testament." That's fine.

Now, a minority of states and the Uniform Probate Code, the UPC, allow the incorporation of documents that are prepared or modified after the execution of the testator's will. As before, the will must intend to incorporate these documents and describe them clearly enough so there's no doubt about their identity. Additionally, documents prepared or modified after the execution of the will can only distribute tangible personal property, and they must be signed by the testator.

Republication by Codicil

In every jurisdiction, it's also possible to make an amendment to an original will. Let's say that Cinderella composes a will that leaves all of her property to the Little Mermaid. A few years later, Cinderella decides that she wants to leave Rapunzel her finest horse. Cinderella writes out a new document that says, "Will addition: I leave my horse, Major, to Rapunzel." Cinderella then signs the document and has it properly witnessed.

As you can see, Cinderella now has two documents that have been executed with the proper formalities. Are they both valid? Yes, they are. The first document, the one that left everything to the Little Mermaid, is Cinderella's will. The second document functions as an amendment to the will. It's called a "codicil." Importantly, to be valid, a codicil must have all of the requirements of a valid will: intent, capacity, and the formalities.

Now, here's one interesting twist. The original will is treated as re-executed on the date of the last amendment. This is known as the doctrine of republication by codicil. The law pretends that the formalities of the original will are redone on the date of the final valid codicil. Now, why? Well, if the testator made an amendment to the original will rather than revoking it, we know that they still like their original will on the date the codicil was made.

Sometimes this doctrine is helpful. Let's use Cinderella's original will as an example. Remember that Cinderella left everything to the Little Mermaid. Unfortunately, in this case, the Little Mermaid has signed the will as a witness. As we talked about in the last lesson, many states purge the gifts of interested witnesses. The Little Mermaid might not get anything. However, if there's a codicil, we can pretend that the formalities of the original will were redone when the codicil was executed. We can pretend that the individuals who witnessed the codicil also witnessed the original will.

In addition to fixing some interested witness problems, republication by codicil can also help firm up wills when there are questions about mental capacity. For example, let's say that Cinderella was undergoing a mental breakdown when she made her original will. If she's regained her mental facilities by the time she makes the codicil, we can consider the original will properly executed.

Now, the doctrine of republication by codicil does have some limits. Republication only applies where the prior instrument had the requisite formalities. It can't be used to fix wills that lack signatures, a writing, or witnesses. For instance, if Cinderella's original document only had one witness, that problem can't be fixed by a later codicil.

That's all for now. See you at the next one.