in this lesson we're going to go over the most frequently tested in highest yielding areas of wills on the bar exam in 60 minutes or less or in other words we're going to go over the absolute must know stuff in Wills for the bar exam which historically if we look at the data is going to be the will execution requirements integration of documents into the will including the incorporation by reference doctrine codicils of course after we talk about will execution and integration we're going to have to think about how a will can actually be revoked and how prior wills that have been revoked could potentially be revived with this we'll also talk about the dependent relative revocation doctrine finally after we get past revocation and revival of the will we can talk about some of the commonly tested construction problems which are going to be anti lapse statutes adem shin Slayer statutes disclaimers and devises to classes or class gifts finally we'll wrap the lesson up with some will contest basically when someone wants to challenge the validity of a will and the main two challenges we'll focus on which are most commonly tested are going to be capacity and undue influence both that guys we have a lot to cover here so I'm just gonna jump into I'm gonna try to do the best I can to get through all of this in 60 minutes but with that we can just set our timer to one hour ready set go so the clock is officially started probably the best place to start here is well what is a will right most of us probably have a good idea right from experience we probably understand what the will is used for but big picture right if you remember back from our last lesson we said kind of if a person does not have a will or some other document that describes where their properties should be disposed of at death the intestacy laws of the applicable jurisdiction direct where property is distributed at death so if a person dies without a will they don't have any other type of document that directs where the property is distributed we know that the intestacy laws of the applicable jurisdiction will direct where that property goes but if a person doesn't want the law of the applicable jurisdiction to decide where their property goes basically they don't want the state to decide for them where their property is distributed one way they can modify this is by executing a proper we'll write in the will a person can direct where their property should be directed or where their properties should be disposed of at death right maybe you want to leave property to some sort of charity you like maybe you want to disinherit somebody right maybe of a son or something who's entitled to a share under intestacy law but you want to disinherit that person right the will is a way that you could disinherit somebody so there's a lot of reasons somebody might want to execute a will to direct where their property should be distributed at death so what are the requirements how do you validly execute a will well generally we have five elements right and of course this is going to vary from jurisdiction to jurisdiction but traditionally we have five major elements right to be valid a will must be in writing it must be signed by the testator or another it must be attested in the testator's presence by competent witnesses and these are kind of our five elements number one it has to be in writing this is pretty straightforward of course nowadays in modern times you're going to have some jurisdictions that allow for basically video wills where a person could be recorded right and you could have kind of a video version of a will but for our purposes on the bar exam right the traditional rule is that a will has to be in writing it's going to have to be signed right typically this requires some mark on the will and intent for the signature to be a validating Act right so you don't actually need somebody to sign their full name right any mark will suffice they can put their initials they could put you know an X whatever right a mark will work as a signature so long as that mark was intended to be a validating Act right so one thing you might see tested is a person you know kind of writing their will and they say you know I Michael leave blah blah blah to this person and you know that is not necessarily just writing your name on the paper is not necessarily meant to be intent to validate the will you were just writing your name on the paper right so we want to see that mark being used to actually have the intent right when that mark is made the intent for that signature or that mark to be a validating act of the will the signature at the end usually that says okay now I'm validating this will so of course we say also that this signature has to be made by the testator or another person so obviously if a person has a physical disability or something there could be a lot of reasons somebody might not be able to sign their own will of course in most jurisdictions right you're going to be able to use a proxy another person may sign the will for the testator if it is done at the testator's direction and in the testator's presence like the testator by the way i'm going to use this word a lot it's just the person who is executing the will this is the person who's got property that he wants to distribute by will that's who we refer to as the testator in a way you can think about this remember our last lesson we said if a person dies without a will we say they died intestate if they have a will they're a testator right they've died test date making them the test date tour right so anyway so going back into this element so it can be signed by the test state or or another right and another person may sign as a proxy on behalf of the testator if it's done at the testator's direction and in the testator's presence so sometimes you could see this tested is like a lawyer right this would be a classic kind of fact pattern a testator hires a lawyer to draft a will for him on his behalf and then he asked the lawyer to sign the will for him right well it depends on where the lawyer is when that happens right because that would meet the first part of this right that is at the testator's direction but is it in the testator's presence right typically we'd want to see the lawyer nearby right it couldn't be over the phone or something like that right the lawyers in you know a different state over the phone being directed to sign knows we had that's usually not going to work right it has to be in the testator's pleasance and we're gonna define what presence is in a second right we have two different rules we can have a traditional approach and a modern approach we have the traditional line of sight tests and the conscious presence test which we're going to talk about in a second but for now just accept right that we do need if proxy is going to sign on the testator's behalf they have to be nearby usually either in the line of sight of the testator or within the range of senses of the testator within earshot within vision you know within arm's length you couldn't have somebody you know over the phone or something like that signing on behalf of the testator right of course next we have to have witnesses typically in most jurisdictions we have to have the will has to be a test date attested in the testator's presence right so we're going to need some witnesses to a test to the will this is usually done by two or more competent witnesses signing off on the will right but what does it mean to be attested in the testator's presence this is what we were getting into the line of sight tests and the conscious presence test so the traditional view is that to attest a will for a witness to attest a will in the testator's presence that witness has to be within the line of sight of the testator right so if I am having somebody sign or if I'm having a witness attest to my will right on the testator that witness whoever those two witnesses are who are attesting to my will have to be within my vision at the time of execution of that instrument like if those witnesses are in a different room right outside the hall and I can't physically see them with my two eyes that fails the line of sight test if there's a pillar in the room and just the way we happen to be standing I can't see one of the witnesses right you need to take a step to the left or a step of to the right to become in my line of sight then not within my line of sight right that fails the line of sight test all right so you can see that's a really narrow strict test and it doesn't make a whole lot of sense in certain situations so the more modern approach is going to be a conscious presence test where we say look you don't have to actually be in the testator's line of sight any range of senses so if you're within earshot if the testator could reach out and touch you and feel you if they can see you as long as you're within any of the range of senses that's going to satisfy the test so the classic kind of way you can distinguish between the two in your head is think about the guy in the hallway right who's out of the line of sight but can clearly hear the testator right under the line of sight test right if a guy's out in the hallway outside the room right well that fails the line of sight test that witness is not within the testator's line of sight but it is within earshot right that witness is within earshot of the testator so that would fail the line of sight test but pass the conscious presence test right finally the witnesses right and remember we usually need two witnesses we say the witnesses have to be competent right so you couldn't have a witness who's like legally insane or something like that but another thing that's interesting is that in some jurisdictions right to be competent we say that the witnesses have to actually be disinterested right this is an old common law rule but it's still followed in some jurisdictions right to be competent the witnesses have to actually be disinterested which means the witness is not receiving any benefit under the we'll wait to be disinterested the witness has to not be receiving any benefits under the will right so in those jurisdictions that are following that approach if you have an interested will an interested witness who's attesting to the will right it's not going to end of itself invalidate the will as a whole what's going to happen is you generally have what are called purging statutes that are going to reduce the share of that witness right so if that witness is receiving some benefit under the will write that purging statute and these jurisdictions that follow this approach is going to reduce their share typically to whatever they'd be entitled to under the applicable jurisdictions intestacy law right so if you have an interested witness and you're in a jurisdiction that requires the witnesses to be disinterested right that doesn't necessarily invalidate the will as a whole what that's typically going to do is just reduce that interested witnesses share of the benefit of the will to basically whatever they'd be entitled to under intestacy law are also important to recognize that under the Uniform probate code or the UPC signature from a notary can validate a will so basically this is a substitute for having two competent witnesses you can go to a notary valid signature from a notary would satisfy this element and any jurisdiction that's following this section of the Uniform probate code but those are your five requirements to validly execute a will right it's gotta be in writing and signed it's gotta be signed by the testator or another right another person may sign if it's done at the testator's direction and in the testator's presence it's got to be attested basically by two or more competent witnesses in the testator's presence that's usually going to require that the witnesses sign off on the will so those are our five requirements to execute a valid will next we can move into integration of documents into the will right so let's just talk about incorporation by reference so in most states extrinsic documents may be incorporated into a will by reference if three elements are met right the testator intended to incorporate the document into the will the document was in existence at the time the will was executed and the document is sufficiently described in the will so something that you can have classically tested as a fact pattern right imagine that you have a testator who executes two different wills right and let's just call it will number one it's executed first will number two is executed second like well let's say that will number one is not executed properly it fails to satisfy one of these elements right maybe the testator forgets to sign it it's not signed properly it's not witnessed properly right there's something wrong with the execution of the first will and then later on we have execution of a second will right so we have an attempted execution basically of will number one but it's invalid and then we have an execution proper execution of a second we'll right very important to recognize that whatever that piece of paper is right we have this writing that looks like a will but it wasn't properly executed that writing essentially has no legal effect by itself you should just think of it as just some piece of paper floating around right there's no legal effect for our purposes right in the distribution of property it's a worthless piece of paper right but it can become meaningful basically for our purposes on the bar exam and only one way right where a will was failed to be executed properly yeah that piece of paper can become important if it's incorporated by reference into a subsequent will right and most states extrinsic documents may be incorporated into a will by reference if these three elements are met so in that example what could happen that floating piece of paper that had no legal significance force can become legally significant legally significant if it's incorporated by reference into a validly executed will right so if the testator intended to incorporate the document to the will the document was in existence at the time the will was executed which it would be there because that failed attempt happened first so it did exist right our extrinsic document exists that floating piece of paper existed so it's going to come down to whether the testator intended to incorporate it and whether the document is sufficiently described in the properly executed will if those two elements are mad because element number two we know is that it was an at the time right the will was executed so it's gonna come down to element 1 and element 3 and that will just be looking at the fact pattern did the testator intend to incorporate that floating piece of paper right into the will and what that document sufficiently described in the will if both of those are satisfied then that piece of paper that had no legal significance right that failed attempt to execute a will now becomes part of the will right if all three of those are met now let's compare that to what happens with codicils like so a coda SIL is a supplement or addition to a will made after a will is executed all right so a coda SIL has to meet the same formality requirements that a will has to be has to meet these five elements to validly execute a coda SIL or you have to satisfy these five elements the exact same as executing a will same formality requirements right so if the coda SIL is validly executed right he meets those five elements the effect is going to be that the original will is treated as republished right so it's like the will got republished on the day that the codasyl was executed now it's extremely important to recognize that the original will is only treated as republished if the original will was properly executed right so in our fact pattern remember same hypothetical will number one is not properly executed let's say later down the line a coda SIL is properly executed right does that codasyl republish the original will that was improperly executed the answer is no right and this is sometimes tested on the bar exam way a coda SIL cannot revive an improperly executed will in no situation if the original will was improperly executed one of these elements didn't happen even if a coda SIL is later executed validly right it does meet all these requirements it's not going to revive a prior will that was doubt that was not validly executed remember the only way that that legally and significant piece of paper becomes part of the will if it's if it's incorporated by reference right a codasyl cannot save that floating piece of paper that insignificant failed executed will right now having said that there are some situations where a codasyl could defect specific problems could cure specific defects right in the original will so long as the original will was properly executed but it does meet these five requirements right but say there's some defect in that will right and we're gonna talk about a lot of construction problems that'll come up so just bear with me if there's some defect that's in the will but the will was validly executed right it was in writing it was signed by the testator or another is attested by competent witnesses we have all the requirements are met so we have a valid will and then a coda sill is executed that could cure specific defects in the prior properly executed will right so hopefully that makes sense right to give an example let's say that we're in a jurisdiction that requires the witnesses to be disinterested right we're in a jurisdiction that requires the witnesses to be disinterested well let's say that in the first execution of the first will we had an interested witness right we had an interested witness who was getting a benefit that was larger there than their intestate share well we know that that does not invalidate the original will that's just a defect in the will that's going to reduce their share remember that just reduces their share to whatever their intestate share would be in those jurisdictions it does not invalidate the will so in that case we would have a validly executed will we have this defect right we have an interested witness where we're supposed to have Tristram witnesses so if the code is SIL is now executed with two disinterested witnesses it republish 'as the original will because the original will was properly executed so now that defect that specific defect is fixed right so that disinterested witness or that interested witness can get whatever their gift was going to be that's in excess of their intestate share but because the code is still now republish --is and because the codasyl was executed with two disinterested witnesses it cures the defect of the interested witness now that interested witness can get whatever their gift was in excess of their intestate share okay so that's incorporation by reference and the code SIL thank you so much for watching this video preview of our bar blitz video series if you would like to see the conclusion of this video and gain full access to our entire bar blitz video library which includes coverage of the most frequently tested in highest yielding areas of law in each bar exam subject we invite you to head over to our website enjoying the thousands of law students who have already enrolled in stood a cata bar review to get started with your no risk free trial today simply click the link in the description box below or visit [Music] [Music] [Laughter] [Music]