Requirements for Making a Valid Will: Mental Capacity general capacity legal age mental capacity UPC 2-501: must have a sound mind Restatement 3rd 8.1 (b): testator must be an adult (age 18 or older) be capable of knowing and understanding in a general way: 1) the nature and extent of property; 2) natural objects of bounty; and 3) disposition making and capable of making of that property fourth requirement (in some states): must relate these elements to one another and form an orderly desire regarding the disposition of property effect of general incapacity: will is blown up; denied probate Estate of Washburn (NH 1997)(“Because the petitioner met her burden of producing evidence to demonstrate a potential failure of due execution, the trial court correctly found that the presumption of competency was rebutted and the respondent had to prove capacity by a preponderance of the evidence”)(case advances argument that the capacity requirement supports the family) cf. Wilson v. Lane (GA 2005)(No testimony was offered to establish that at the time the will was executed, Greer suffered from a form of dementia sufficient in form or extent to render her unable to form a decided and rational desire regarding the disposition of her assets)(eccentric habits and absurd beliefs are not enough to show lack of capacity) ante-mortem probate (living probate): ability to probate while testator is still alive; reduces likelihood of will challenge reasons for requiring a sound mind: protect the decedent’s family: In Re Strittmater: cousins instead of NWP; Estate of Washburn: niece instead of caregiver; “tends to preserve the family as a unit for mutual support and so provides care and support for the aged person” (SS: weak incentive); protect crazy people from exploitation by others; enhance the legitimacy of the law; cost-benefit balancing SS: capacity requirement is a limiting rule; it should be a default rule specific capacity
purging statute: purges out of the will the gift to the interested person Estate of Morea (NY and IN)(strike the gift to the extent of the gain: only strike the part of the will that is the extra benefit of the will being admitting into probate) UPC: strike nothing CA: creates a presumption of undue influence, fraud, etc.; might strike the gift SS: probably better than UPC; but, costs (more litigation) Mistakes in Execution and Inducement mistake: misperception of reality; an inaccurate mapping of the world onto the client’s brain two general types of mistake mistake in the inducement (reasons for making the will); will is admitted to probate mistake in the execution (misperception about the content of the documents she is signing; did not intend for document to be will); will is not admitted to probate if mistakenly included clause, deny probate to that clause (there is no intent for it); if mistakenly omitted clause, may not add it document switch (special type of mistake) In re Pavlinko’s Estate (Penn. 1959)(Because the testators switched signatures, the will is null) In re Snide (NY 1981)(Even though there was a switched wills error, the will should be probated)(SS: dissent is right—it did turn out to be an early step towards relaxation of formalities; UPC became more relaxed) UPC 2-503 (dispensing power)(Stake hates it and thinks it should be optional): court can relax formalities if document was intended to be will of decedent; clear and convincing evidence an instrument was intended to be a will does not require court to find that all purposes of formalities are satisfied; just need to find that intent formality was satisfied In re Will of Ranney (NJ 1991)(“A careful practitioner will still observe the formalities surrounding the execution of wills. When formal defects occur, proponents should prove by clear and convincing evidence that the will substantially complies with statutory requirements”)
traditional common law rule (majority)(In re Trust of Stuchell): allow deviation only if trust purpose cannot be accomplished without making a change modern trend (minority): allow modifications to further interests of trust In re Riddell (Court grants equitable deviation in form of supplemental needs trust because that is what settlor would have wanted) termination of trusts automatic termination “Trust shall last until Earl’s youngest child is 30 years old.” Earl is dead and his youngest child is 30 years old. Does the trust terminate? YES beneficiaries and settlor agree to terminate, trustee disagrees objection of trustee is no hurdle when ALL beneficiaries and settlor agree to terminate the trust beneficiaries agree, settlor is dead, and trustee disagrees (fights for continuation of trustee and his trustee fees) Claiflin doctrine (In Re Estate of Brown): if continuance of the trust without modification or termination is necessary to carry out a material purpose of the settlor, the beneficiaries cannot compel modification or termination note: discretionary trusts, spendthrift trusts, and support trusts almost always qualify as having a material purpose and will not be modified or terminated; protection lasts only as long as RaP allows no Claflin doctrine in England Claflin doctrine is under attack in U.S. Restatement 3rd section 65: Court should weigh reasons for termination against material purpose UTC section 411 (b): “may be terminated if continuance of the trust is not necessary to achieve any material purpose of the trust” example: To “T for the professional education of A’s 2 children, and after they are all educated to be distributed