It is fair to speculate as to why the Law surrounding the drafting and witnessing of Wills is complicated.
In a recent post I criticized do-it-yourself Estate Planning kits. It included an article about how a Florida woman’s Estate Plan was ineffective because she used of a kit and did not execute the Will properly. One reader posted a probing comment “A ploy for attorneys by attorneys?” This was a very good, deserved and pointed comment. This article will discuss reasons behind the formalities required when executing a Will.
Thousands of years have shaped the laws of inheritance and the execution of Wills. Consider how Jacob stole his Brother Esau’s birthright by tricking Isaac. See Genesis 27. Since then traditions, statutes and case law has developed in order to protect heirs from undue influence, fraud, mistake or unintended disinheritance. Our current system, while not perfect, is intended to protect against these occurrences.
Oklahoma recognizes three broad categories of Wills:
- Holographic, in the Testator’s (Will creator’s) own hand writing;
- Typewritten and Witnessed; and
- Dying battlefield declarations [nuncupative].
This article will discuss only written Wills. For those curious information about a dying battlefield declarations can be found at the end of this article.
When a Will is presented to Probate Court for administration, the concern of the court is the circumstances surrounding the creation of the will, the Court looks at three elements:
1) whether the will has been executed with the requisite statutory formalities;
2) whether the maker was competent to make a will at the time; and
3) whether the will was the product of undue influence, fraud or duress.
See, In re Estate of Speers, 179 P.3d 1265, 2008 OK 16 (Okla., 2008).
Why are there statutory formalities with the execution of a Will?
The formalities of the execution of a Will are meant to insure that the Testator has the capacity to make a Will and to safeguard against undue influence, fraud or duress. “The formalities to be observed in the execution of wills are simple and calculated to prevent fraud and uncertainty in the testamentary dispositions of property.” In re Speers. The formalities also help assure that the document was created to express the Testator’s Testamentary Intent. In Oklahoma, a will has been defined as a declaration of what a person desires to be done after his death. Miller v. First Nat. Bank & Trust Co., 637 P.2d 75 (Okl.1981).
A person has testamentary capacity when his mind and memory are such that he knows, in a general way, the character and extent of his property, understands his relationship to the objects of his bounty [those who may have a claim to an inheritance] and to those who ought to be in his mind on the occasion of making a will, and comprehends the nature and effect of the testamentary act. Walker v. Risk, 380 P.2d 80 (Okla., 1963). This is generally seen as a fairly low standard. A person must also be of sound mind. Even persons that have had guardians or conservators appointed may execute a Will but it must be witnessed by a Judge. Title 84 Okla. Stat. § 41.
The requisites of a valid will are that it be an instrument, in writing, that it be executed as prescribed by statute, with testamentary intent, that it makes a disposition of property to take effect after death, and that it be by its own nature ambulatory and revocable during the maker’s lifetime. Estate of Baxter, Matter of, 798 P.2d 644 (Okla.App. Div. 1, 1990).
The elderly are susceptible to undue influence by those that are closest to them whether they are family, friends or caregivers. Vulnerability may result from diminished capacity or the fear of abandonment or retaliation. Such factors may result in an estate being bequeathed in a manner that would have been the Testator’s intention in the absence of these factors.
Oklahoma uses a two-prong test to determine whether undue influence taints the procurement or preparation of a will: (1) whether there was a confidential relationship, and (2) whether the stronger party in the relationship assisted in the preparation or procurement of the weaker person’s testamentary instrument. Maheras, 897 P.2d at 272. The Court listed the following factors to be considered in applying the two-prong test:
1. Whether the person charged with undue influence was not a natural object of the maker’s bounty;
2. Whether the stronger person was a trusted or confidential advisor or agent of the will’s maker;
3. Whether he/she was present and/or active in the procurement or preparation of the will;
4. Whether the will’s maker was of advanced age or impaired faculties;
5. Whether independent and disinterested advice regarding the testamentary disposition was given to its maker.
Jacob used a disguise to trick Isaac into giving him the inheritance intended for Esau. Likewise, individuals can be tricked into signing items without knowing that the document would be presented as a Will.
Holographic Wills, No Witness Required
“A holographic will is one that is entirely written, dated and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of this State, and need not be witnessed.” 84 Okla. Stat. § 54. This means that any typewritten portion cannot be part of a Will. The requirement that it be solely in the Testator’s handwriting seems to insure that there is an absence of fraud or duress. The “entirely written, dated and signed by the hand of the testator himself” may also help the Court to determine whether drafter was in his right mind and understands the gravity of the document.
A recent case unreported case[i] involved the two purported Holographic Wills written by Inez Amen. They were both written entirely in her own handwriting. Will “A” left everything to her husband, it was signed and dated.
Will “B” had 20 numbered items and gave specific items to various family members, it was signed but not dated.
A dispute arose and the question was which Will to follow. The Court admitted the Will “A” that that left everything to her husband because it was both signed and dated. There was no way to tell when the Will “B” was written so it could not tell whether it was written before or after Will “A”. If Will “B” meant to replace or amend Will “A” it was not effective. An attorney would have known that the its important to date a Will.
Typewritten or Pre-printed Wills:
If any portion of a Will is not in the handwriting of the Testator it must be witnessed. Fill in the blank forms and internet programs fall into this category. These requirements are in place to add a level of certainty to the Testator’s actions are to make a Will and that this intent is free from undue influence. Oklahoma Title 84 Okla. Stat. § 55 requires the following:
Every will, other than a nuncupative will [soldier’s dying declaration], must be in writing; and every will, other than a holographic will [handwritten] and a nuncupative will, must be executed and attested as follows:
1. It must be subscribed at the end thereof by the testator himself, or some person, in his presence and by his direction, must subscribe his name thereto.
2. The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them, to have been made by him or by his authority.
3. The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will.
4. There must be two attesting witnesses, each of whom must sign his name as a witness at the end of the will at the testator’s request and in his presence. …
Witnesses Needed at Execution and In Court:
In order for a non-holographic will to be admitted into court it must be witnessed in accordance to the provisions listed above. Unless the Will is executed with certain additional formalities that make the Will “Self-Proving”, the Will might not be admitted to Probate. In the In re Estate of Speers, 179 P.3d the “Self-Proving” formalities were not followed. 23 years later the Witness testified that he was not certain if the Will was signed in his presence or the other formalities were followed. In a split decision the majority of the Justices ruled that the Will should not be not admitted to probate. If the Will had been executed with an additional formality the case would not hinge upon a witness’ memory.
For a Will to be Self-Proving Will it must follow additional execution formalities. Essentially they require the signature of a Notary who must witness the signatures of the Testator and the witnesses. The signatures must be proceeded with additional statutory language. Had the Speers Will been executed with these formalities, it would have been admitted without the need of a witness to recall events that occurred a quarter of a century earlier.
In a recent Florida Case (Aldrich v. Basile (Fla., 2014) Ann Aldrich intended to leave all of her property to a sister. However the sister died before her. Using an “E-Z Legal Form” amended her Will (a codicil) to leave everything to her brother. She completed the form and the brother’s daughter witnessed it. However, because the codicil was not properly executed it was invalid under Florida statutes and other family members effectively contested it. Justice Pariente wrote:
This unfortunate result stems not from this Court’s interpretation of Florida’s probate law, but from the fact that Ms. Aldrich wrote her will using a commercially available form, an “E-Z Legal Form,” which did not adequately address her specific needs—apparently without obtaining any legal assistance.
The fact that the brother’s daughter witnessed the will may have been sufficient to invalidate it under Oklahoma law. This is because she was a could potential inherit and she was named as executor or person in charge of the estate. A witness cannot be anyone who receives anything under the Will. Title 84 Okla. Stat. § 143 states:
All beneficial devises, legacies or gifts whatever, made or given in any will to a subscribing witness thereto, are void unless there are two other competent subscribing witnesses to the same; …
In other words, someone who is to inherit cannot witness a Will. The fact that Ms. Aldrich’s amendment was witnessed by the brother’s daughter could also raise issues of undue influence and capacity. Also, by acting as a witness she may have been unable to inherit if her father predeceased her aunt.
It is fair to wonder whether the laws are designed to insure that attorneys are sought out in order to have a valid Will. Perhaps the laws could be a bit simpler to follow or operate in a less clumsy manner. However, the intent of the law is insure that Testator grasps the significance of the act being taken. The requirements of witnesses helps safeguard against undue influence and fraud.
This article cannot begin to provide the hundreds of Will contest cases that come along. It does not begin to describe the steps that need to be taken to execute a valid Will. These few examples demonstrate how important it is to obtain proper direction when making an Estate Plan. This may also explain why so many attorneys seek out other attorneys to prepare their estate plans. Many attorneys love do-it-yourself Estate Planning kits for the litigation they generate. I always hate to see expensive and irreversible mistakes made by those hoping to save a few dollars.
Soldier’s Dying Declaration:
Title 84 Okla. Stat. § 46:
To make a nuncupative will valid, and to entitle it to be admitted to probate, the following requisites must be observed:
1. The estate bequeathed must not exceed in value the sum of One Thousand Dollars ($1,000.00).
2. It must be proved by two witnesses who were present at the making thereof, one of whom was asked by the testator at the time to bear witness that such was his will, or to that effect.
3. The decedent must at the time, have been in actual military service in the field, or doing duty on shipboard at sea, and in either case in actual contemplation, fear or peril of death, or the decedent must have been at the time in expectation of immediate death from an injury received the same day.
So this would not be valid if:
- Estate is over $1000.
- Soldier lives longer than day of the injury or danger.
- The witnesses survive to testify about the wishes.
[i] Unpublished Opinion No. 102,257 (2006)