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STUDENT ANSWER 1: 1. Testator's Will Is Valid. in Order for a Will to Be

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STUDENT ANSWER 1: 1. Testator's Will Is Valid. in Order for a Will to Be STUDENT ANSWER 1: 1. Testator’s will is valid. In order for a will to be valid, it must strictly adhere to the state’s formal requirements for validly executing a will. Before addressing those requirements, where a will contains an attestation clause or is executed by an attorney, there arises a presumption that the will was validly executed and will be admitted to probate unless contested as invalidly executed. Here, the will’s execution was overseen by an attorney and will give rise to the presumption. Most states adopt the following requirements: the will must be signed by the testator at the end of the will, the will must be in writing, it must be published as a will, and witnessed and signed by two witnesses. Here, testator’s will was in writing, and published. To publish a will, there must be a stated or demonstrated intent to make the document a will, which the testator did by declaring the document on the attorney’s desk to be his will before the witnesses (note that the law does not require testator to read the will’s contents to the witnesses). The will’s signing was also witnessed by two witnesses, who we can assume are not any of the named individuals in the will, and thus their two signatures are sufficient for all gifts to be valid within. Additionally, the law imposes no requirement that the pages need to be stapled together. Since the pages were kept together and not lost, the will may be valid. Here, the testator’s signature which was not placed at the end of the will, but rather before the attestation clause and witness signatures. While under the majority position, the signature must go at the very end of the will, and anything below the signature is not included in the will, the relevant state statute does not include this requirement, and merely provides that the will is not valid unless “signed by the testator and two attesting witnesses.” 2. The testator’s estate should be distributed to Sister, Abby, Bruce, Carl and possibly Don. The testator’s disposition to sister originally giving her $20,000 was effectively revoked by the state statute which allows a will to be partially revoked by destruction or cancellation. Destruction or cancelling includes ripping a will, destroying a page or pages, or completely crossing out portions. Despite this, a will cannot add portions by simply writing on it after its execution, unless it complies with the formal requirements for being another will or codicil, which it does not. Here, where the testator crossed out his previous bequest to sister and changed it, he only revoked the gift. However, when admitted to probate, the court could restore the sister’s original gift. Where a testator attempts to modify conditionally, i.e. cancelling someone’s bequest to give them a different one, the court may invoke the earlier bequest based of the testator’s intent. Here, because the testator’s intent was to provide for the sister even greater, the court will likely give the sister her original bequest. All of testator’s children will receive under the will. Where a will contains a bequest to “my children in equal shares,” all valid, children at the time of testator’s death will receive equal shares. Children of a testator receive where they are biological (and not thereafter given up for adoption by another), and adopted (who then relinquish their intestate share from their birth parents). Here, Abby and Bruce receive their shares as biological children of the testator who we assume were not given up for adoption. Carl, the testator’s step-child, having been adopted by the testator also is therefore one of his children, as the bequest does not state “biological children.” Don, claiming to be the testator’s non-marital child can receive under the class gift to “his children” if by court order, a paternity test soon ordered, his birth certificate, or previous acknowledge by testator, to be Testator’s child, can also receive an equal share. Therefore, all four of testator’s children will receive equal shares of the remainder of the state after the sister’s $20,000 bequest. STUDENT ANSWER 2: 1. Is Testators will valid? For a will to be valid it must be executed in writing, signed by the testator at the end of the instrument, published by the testator, and signed by two witnesses. The witnesses do not have to sign the will at the same time just so long as they are within a reasonable time of the testator signing the will. Here the testator’s will is in a writing, signed by him at the end of the document, was published to the witnesses when the testator declared the document on the attorneys desk to be his will, and had two witnesses sign the document. A testator may modify a will by executing a codicil. The relevant statute provides that no will or codicil is valid unless signed by the testator and two attesting witnesses. A valid codicil will republish a will at the time the codicil is executed. Here, the testator’s amendment to his will is invalid. The testator crossed out the bequest and wrote above the crossed-out bequest that he would give $40,000 to Sister. The amendment to the will was not signed by the testator nor did two attesting witnesses re-sign the document and is therefore an invalid codicil. Generally, a will may not be revoked in part by destruction or cancellation and to amend the testator must execute a new will omitting the relevant parts or executing a codicil and republishing the will. Handwritten notes or changes on a will do evidence the testator’s intent to change the will but are not sufficient to effectively change. However, the applicable statute follows the Uniform Probate Code and permits a testator to revoke a will in whole or part by destruction or cancellation. If the state statute follows the UPC then crossing out specific lines in a will is sufficient to cancel that part of the will. Here, the testator’s crossing out his sister’s bequest revokes that part of the will. The court should apply the doctrine of dependent relevant revocation. Dependent relevant revocation permits a court to assume that if testator had known his amendment to the sisters bequest would not be valid he would have kept the will as is and given her $20,000. The will evidences clear intent that testator wanted to leave the sister money by increasing the amount he wanted to leave her. The court should disregard the testator’s crossed-out marking. This is a valid will however the codicil to increase the sisters bequest is not. 2. Testator’s Estate distribution The testator’s will made a class gift for the balance of his estate to his children. When a will devises property to the testator’s children any after-born children may take from the will if they have not been cared for during the testators lifetime and depending on how the other testators children were provided for in the will. Adopted children are also included in the testators bequest and will take under the class gift. Assuming Carl was adopted before testator executed the will, he is not an after-born child, and will take under the will. Nonmarital children are also allowed to inherit from their birthparents testamentary/intestate distributions and can take under class gifts. A nonmarital child is permitted to take under a nonmarital father’s class gift bequest if the father has acknowledged paternity or paternity has been established a court order. Depending on the states law paternity may be required to be established before the fathers death. However most permit paternity to be established after the father’s death. If the state permits paternity to be established after the father’s death and Don can establish by court order that he is testator’s child he is permitted to take under testator’s class gift. Testators estate should distribute the $20,000 to T’s sister, if the state permits dependent relative revocation, and the balance of the estate to Abby, Bruce, Carl, and if Don establishes paternity then to Don. STUDENT ANSWER 3: To be valid a will must be in writing signed by an adult testator, the testator must publish it as will and two witness must sign after the testator. Under the majority rule, any handwritten amendment to a will made after it was executed is invalid even if it is signed above or below it unless it is a holographic will. Holographic wills which are unwitnessed, but are written and signed in the testator’s handwriting. Except in a holographic will, many states prohibit a partial revocation of a paragraph or clause in the will by a physical act. In those states, it can only be revoked by a codicil or a will. However, in the majority of states and in the uniform probate code, a partial revocation by a physical act is permitted. A statute cannot attempt to disinherit a non-marital child since such a statute would unconstitutionally violate the EP rights of children born outside of a marital relationship. However, this protection does not apply to adopted children. Thus a state statute may constitutionally prohibit adopted children from inheriting. An out of wedlock child can inherit from his biological father but only if the father acknowledge paternity or there was a court order of paternity. Here, there is no holographic will since Attorney drafted the will and not the Testator.
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