Will Execution Ceremonies: Securing a Client's Last Wishes

Publication year1994
Pages47
CitationVol. 23 No. 1 Pg. 47
23 Colo.Law. 47
Colorado Lawyer
1994.

1994, January, Pg. 47. Will Execution Ceremonies: Securing a Client's Last Wishes




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Vol. 23, No. 1, Pg. 47

Will Execution Ceremonies: Securing a Client's Last Wishes

by David K. Johns

Attorneys often spend hours creating complex estate plans for clients, only to potentially sabotage the validity of final documents through improper execution. Lack of formalities in execution can lead to costly litigation attempting to validate a will, undue delay in probating an estate, malpractice claims against the attorney/law firm responsible for execution or failure of the client's wishes to be realized. This article and accompanying checklist focus on will execution procedures that, when followed, can bolster the validity of a will against attack based on fraud, undue influence, lack of mental capacity or improper execution.

Purported wills are most often challenged when the testator attempts to dispose of property in accordance with a "nontraditional" testamentary scheme, such as disinheriting a child, step-children or spouse; or large dispositions to nonrelated individuals, religious or nonprofit organizations. Most challenges are made on the basis either that the testator lacked the necessary mental capacity to execute a will or that a third party exercised undue influence to the extent of invalidating the document. Failure to comply with statutory formalities of execution also may be a reason for attack. As discussed below, will execution ceremonies can demonstrate the clarity of thought and intention of the testator regarding a particular scheme of distribution of property, in addition to safeguarding against the possibility of fraud.


Historical Developments

For centuries, people have had difficulty dealing with estate planning. Fear of death and a reminder of a person's own mortality usually lead to procrastination.

Moreover, superstitions have always surrounded the will execution ceremony. Wills were often made near the time of death and witnessed by clergy as one of the last acts of the testator. Thus, many people believed that once made, the will was an omen of pending death. This is one reason that will executions became "ceremonies": to impress upon all those involved the significance of the act and to evidence the testator's wishes for disposition of property after death.

Evidence of will execution ceremonies can be traced to the ancient Egyptians. For example, a ceremony conducted in 2548 B.C. involved an instrument written on papyrus and witnessed by two scribes.(fn1) During Roman times, a free man could transfer up to three-fourths of his assets at death by executing an oral or written transfer of assets prior to death, which was enforceable by the Praetorium after death. This act was called a testamentum (testament) calatis comitiis.(fn2) The testament had to be performed before at least seven witnesses who would, after death, then testify in front of the Praetor and prove (probate) the will.(fn3)

Will execution ceremonies in the United States are based primarily on English statutes. The Statute of Wills of 1540, which gave power to devise certain lands held in fee simple, required devises to be in writing. There was no necessity that the writing be made by the testator, or that it be signed.(fn4) The Statute of Frauds of 1676 provided more formal will execution requirements, including that the writing be signed by the testator and attested by three or four witnesses.(fn5) The Wills Act of 1837 established the same requirements for disposing of real and personal property by will. Execution requirements included that the will be signed at the foot, or end, and further required that the testator sign the end of the will before at least two witnesses.(fn6)

About one-half of the United States followed the formalities patterned under the Statute of Wills and Statute of Frauds, and approximately one-half adopted formalities under the Wills Act of 1837. The result is that wills validly executed in one state may not be formally valid in another, unless a curative statute has been adopted by the probating state, granting full probate dignities to a will executed under the formalities required in other jurisdictions.(fn7) Execution formalities required by the Uniform Probate Code ("UPC")(fn8) represent a compromise between different classifications of formalities.




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Functions of Ceremonies

Formalities of will execution ceremonies serve primarily four functions.(fn9) First, they provide the court with reliable evidence of the testator's intention to give terms of the will legal effect---a "cautionary" function. Ceremonies demonstrate that the testator was not acting in a casual, haphazard, whimsical or capricious manner by requiring a level of deliberation and reflection about testamentary desires.

Second, the formalities further verify intent---a "ritual" function. The fulfillment of the necessary acts is evidence of the testator's premeditation and deliberation and signifies the finality of his or her intention. The ritual and cautionary aspects of formality reinforce one another: on one hand, ritual tends to induce deliberation and reflection, and on the other hand, fulfillment of the ritual function indicates premeditation and deliberation.

Third, formalities serve to establish evidence to the authenticity of a will---a "protective" function. Formalities serve as safeguards against fraud, substitution, duress and undue influence, and help establish the genuineness of specific disposition of property intended by the testator.

Fourth, formalities enable a degree of standardization to be achieved, which makes processing transfers more efficient and less expensive---a "channeling" function. Compliance with formalities allows courts to avoid examining issues of authenticity and intent in every case. In addition, formalities set a standard of conduct for testation and provide testators with reliable guidelines for executing their wills.


Colorado Law

Since adoption of the UPC in 1973, Colorado law requires a minimum of formalities for execution in order to validate wills whenever possible. The current statutory execution requirements of nonholographic wills(fn10) are:

1) the will shall be in writing;

2)...

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