Model answer, trusts and wills, spring 2008

The validity of the second will

    The facts tell us that the second will was properly executed and that Floyd (F) had capacity.  So it seems likely that the main issue is going to be whether Candy had undue influence on him.  The best way to prove undue influence is if there is a confidential relationship between the possible influencer (Candy, or C) and F, which shifts the burden of proof.  
    A confidential relationship (CR) exists where the testator places a lot of trust in someone else.  Certain relationships are automatically confidential, and the attorney/client relationship is one of them.  Candy was F's lawyer in drafting the will, so she had a CR with F.
    For the rule to apply, most jurisdictions also require that the person in the CR get the bulk (or a substantial part) of the estate.  Here, C got everything, so this prong is also met.
    Finally, California requires that the influencer must have actively participated in the drafting of the will.  C drafted the will (Lopez simply reviewed her work), which surely qualifies as active participation.
    Thus, the burden of proof shifts. There is now a presumption of undue influence that C must rebut.
    The general requirements for proving undue influence are that
1.    the testator was susceptible to influence
2.    the influencer had disposition and opportunity to influence the testator, and
3.    the influence was the cause of the disposition.
To rebut the presumption, C must prove these requirements did NOT apply to F.  As to 1, C can argue that F was a hardnosed businessman who knew what he was doing in selling his company. At the same time, C may have been susceptible to her influence, since he was old and lonely.  C will also have a hard time proving she did not have the opportunity to influence F, because she lived with him.  Her best bet will be to argue that the real cause of the disposition was that SB mostly ignored him while C kept him company for the last years of his life.  This might be a winning argument, but because the burden has shifted to C, it will be an uphill battle.
        In some jurisdictions the presumption of undue influence can be rebutted by showing the testator had the independent advice of a lawyer dedicated to his interests (see Moses case). This argument will fail here because Lopez was in the same firm as C and therefore not independent, and he did not investigate whether Floyd really wanted "of his own free will” to give his estate to C.  Also, C was in the room when Lopez talked to Floyd.  
        The most likely outcome is that Will 2 will be found the result of undue influence and invalidated.

The validity of the first will

    The first requirement for proper execution of an attested will is that it be in writing.  The form will was in writing.  Also, it must be signed by the testator.  Here, F signed the will.
    In addition, the will must be witnessed, which means it must be signed by two persons who are present at the same time and witness the testator signing the will, or acknowledging his signature, or acknowledging his will.  F acknowledged that it was his will before his secretary, but not before the delivery boy.  And the witnesses were not present at the same time (when the will was acknowledged).  So this is not a valid attested will.
    We could argue that F substantially complied with the formalities.  Although the delivery boy was not present when F acknowledged his will, the secretary told him it was F's will, and each of them signed it.  So a court might find substantial compliance, but it's not certain.
    If the jurisdiction uses the dispensing power, there would have to be clear and convincing evidence that F intended this document to be his will.  He used a will form, signed it, and had two witnesses sign it, so it seems clear he intended this to be his will.  In a jurisdiction with dispensing power the will would be probated.
     If invalid as an attested will, could it be a holographic will?  First, F needs to have had testamentary intent (intending this document to be his will).  We read a case from Arizona where intent could be determined only from the handwriting.  Under this standard, evidence of testamentary intent is weak.  F did not use the verb "devise" or "bequeath" or even "give," all of which suggest an intent to engage in a legal act (he used "goes to," which is ambiguous).  He did, however, use the legal phrase "real and personal" to describe his property, which shows he was thinking in legal terms, but it does not necessarily show he intended the document to be his will.
    The modern trend allows intent to be proven by the printed parts of a form.  The printed words (especially "Last Will and Testament") make it clear that F intended this to be his will.  F's testamentary intent is confirmed by his attempt to have it witnessed.  
    Intent just sets the stage.  To have a valid holograph, material provisions and a signature must be in the testator's handwriting.  Printed parts cannot be considered in deciding if a provision is material (even under modern rules).  So we ignore the printed words "distribute my estate."  Although the handwritten phrases like "my possessions...go to my wife and her daughter" might be ambiguous in isolation, a court would probably take into consideration that F was writing on a form will, and in that context the meaning of the handwritten phrases is clear and definitely material, because they distribute his estate.  F also signed the will.  So it would be a valid holographic will.
    
3.    Should the first will be probated?

    Assuming the first will was validly executed, it seems to have been revoked.  Revocation can be done expressly, by inconsistency, or by physical act (which applies here).  To revoke by physical act, the testator must tear, burn, destroy, etc., the will.  F tore up the will, so this is met.  Also, he must have had an intent to revoke.  Since he made a new will directly afterwards, he seems to have intended to revoke the first one.  The will was revoked.
    The only way to probate the first will is if dependent relative revocation (DRR) applies.  The testator (1) must have revoked under a mistaken belief of law or fact, and (2) would not have revoked if he knew the truth.  (1) is met because F mistakenly believed that his second will would be effective.  But there is a problem with (2), because he felt ignored by SB, who after her mother died was the sole beneficiary under the first will.  He might very well have preferred his estate to go by intestacy to his blood relatives.  However, his only living relative seems to be cousin Elmer, whom he effectively disinherited.  Would F prefer his estate go to cousin Elmer via intestacy, or to SB via the first will?  It's very hard to say, but my guess is that a court would not apply DRR when his intent is so vague, letting the estate go by intestacy.