In the United States, the surviving spouse receives greater protection in inheritance schemes than any other family member. In fact, in almost all states including Utah the surviving spouse is the only family member who consistently receives significant protection from intentional disinheritance by the decedent. In part the spouse’s favored position is historical. Americans long viewed the spousal relationship as the most important in life—a view the United States Supreme Court emphasized during the nineteenth century. Of course, the importance of marriage sometimes had little to do with romantic or spiritual union. Rather, marriage was often a practical imperative for women given the socially and legally enforced dependence of women on men and restrictive views of both gender roles and family life. Yet the spouse’s preferred position in probate law is not merely a relic.
The law’s insistence on formality was more effective than one might expect, because the will was also, in many ways, a popular as well as a formal document. The general idea, the ways of expressing the idea, even the language itself, seem deeply rooted in custom. In the early seventeenth century, among the first settlers in what is now the United States, and at a time when there were no lawyers to speak of practicing, colonial records show that people knew about wills, that executing a will was the custom, and that people roughly understood how a will should be framed.
These wills often used standard clauses, and also vaguely poetic singsong phrases, clearly based on folk memories. Most legal documents have very little poetry about them. As literature, they are pretty close to absolute zero: consider the typical insurance policy or the impenetrable jungle of jargon in the Internal Revenue Code. And a lawyers opinion letter, as a rule, tends to be written in leaden, cautious prose.
The typical will, too, has always been full of jargon. Yet its customary language was not just legal blather. And for all their technicality, wills were never as dry and pedantic as, say, the typical insurance policy. The will, after all, was an instrument of giving, of love, often, too, it was an instrument written in the shadow of death. Traditional wills were full of traditional, half-mystical phrases.
Under Utah law, a will must have at least two witnesses for it to be valid. The two witnesses had to see the testator sign the will. The witnesses were also supposed to be in each other’s presence when the testator signed or acknowledged the will.
Many courts were quite sticky and insisted on strict, literal compliance with these rules. The modern trend is to relax some of these requirements, and courts today might well reach different results in some of these cases. There has been a definite movement away from “formalism.”
In this age of computers, satellites, and trips into space, there does seem something a bit archaic about the will. It is, after all, a written document, requiring an actual signature (and, for the most part, the signature of witnesses). There has been talk about videotaped wills; but no state recognizes any such thing. A videotape may be “admissible as evidence” of the “proper execution of a will,” the intentions of the testator, the “mental state or capacity of a testator,” the “authenticity of a will,” and other “matters” a court finds “relevant to the probate of a will.” But the will itself cannot be videotaped.
Revoking a Will
A will is “ambulatory,” as the phrase goes. It is a formal, legal document; but does not become effective or enforceable as long as the testator is alive. It becomes effective only on the death of the testator. During his lifetime, the testator is free to do whatever he pleases with the will – he can retain it the way it is, he can change it, he can destroy it. No questions asked. It’s his will and he can do whatever he wants with it. Legally speaking there are two main ways to revoke a will. The most common way is to make another will with a clause that specifically states that the testator is revoking all of his previous wills. If you want to revoke a will and make a new one, speak to an experienced Morgan Utah probate lawyer.
The second method of revoking a will is even simpler. You can revoke a will by killing it physically. Just shred it but make sure there are no copies of the will. The destruction, however, has to be deliberate: if the house burns down and the will burns with it, it has not been revoked, and if you can prove what was in the will, you can still have it probated. A lost or destroyed will can, then, have a kind of life after death. Still, on the whole, the law places great emphasis, almost mystical emphasis, on the will itself, and its signatures. And on the original will. This is the important document—not a photocopy or the like. The will has a kind of magic. You can get rid of it only with another magic document, or by actually putting it physically to death.
Destroying a will, then, was something like killing a vampire: the stake had to go through the vampire’s heart; nothing less would do. Generally speaking, the law has stood firm on one crucial point. The law will not take into account the mere fact that a will is old, out-dated, and doesn’t seem to fit the testator’s present situation or conform to his later wishes. The message is plain: if your situation changes, then change your will. Otherwise, the old will stands.
Contesting a Will
If you want to contest a will, speak to an experienced Morgan Utah probate lawyer. There are some valid grounds on which you can contest a will in Morgan Utah.
The main reason that will contests are rare is quite simple: most wills seem fair and just. A widow dies, survived by three children, and she leaves her money to the three, in equal shares. Her money goes to those whom the law calls the “natural objects of her bounty.” Nobody has any reason to object; and nobody does.
For wills that can be contested, there are some huge hurdles. One is social. Even if daddy’s will was unfair, bringing a lawsuit might cause bitterness and alienate the rest of the family. No doubt thousands of families do disintegrate because of anger and disappointment that pivots on inheritance. But probably most families survive. Cost is another hurdle. A will contest can be expensive; and the risks are high. A third hurdle is the law itself. It puts many obstacles in the path of those who might want to contest.
Fraud is another basis for contesting a will. But this too is a rare claim, and rarely successful. The books and the cases talk about “fraud in the inducement,” and “fraud in the execution.” Fraud in the inducement means “willfully false statements of fact,” which are “intended to deceive testator, which do deceive him, which induce him to make a will, and without which he would not have made such a will.” Lies about the will itself—the document—which induce the testator to “execute an instrument of whose nature or contents he is ignorant,” constitute fraud in the execution. The cases on “fraud” often involve old, feeble people. Some of them seem really to be cases of undue influence, or lack of competency.
Disappointed relatives attack the will, claiming that somebody (a housekeeper, a relative, a neighbor, a trophy wife, a girlfriend, or a gay lover) took advantage of Grandma or Grandpa and inveigled him or her into leaving money to the undue influencer. Many of the cases are about “unnatural” wills (wills that disinherit close relatives); undue influence is “presumed,” too, if the alleged Svengali stood in a “confidential relationship” to the deceased. So, if a person suddenly cuts off his relatives and leaves almost everything to his doctor, lawyer, priest, guardian, or the like, the will may be in trouble. The influence, of course, has to be “undue.” If an old man executes a will leaving all his money to his housekeeper, who is in the room hectoring and badgering him, that situation will seem exceedingly suspicious to a court. But if it’s his wife in the room hectoring and badgering, and he leaves her everything, this is much less likely to be considered “undue” influence. It is influence of course, but not “undue.”
There are exceptions, to be sure. This general statement, about wives and their influence, does not hold quite so true for second wives, especially if the will disinherits the children from a former marriage. Sometimes it is the widow who complains of undue influence. Stepchildren do not hesitate to sue a stepmother; but there have even been instances where children accused their own mother of undue influence. Much more common are cases where the battle is between brothers and sisters. An “unnatural” will may be dangerous, but so is a lopsided will, leaving more money to one child than to another.
The layman often imagines that the world of the law consists of clear, binding, and unambiguous rules. In fact, the legal system is riddled with loopholes and leeways of all sorts, some explicit, some implicit. Undue influence is only one of many devices that give courts (and juries) a little bit of wiggle room. The good news is flexibility; the bad news is that the doctrines are applied sporadically, and somewhat irrationally. Whether a court actually finds undue influence depends on the facts of each case—plus social norms and the courts own prejudices and opinions. The cases thus are very dependent on time and place.
The law of wills is surely still too rigid. There are too many formalities. The whole process of “probating an estate” is still too bureaucratic and complex. Most countries seem to manage to transfer enormous sums from generation to generation without the fuss and formality of American law. But American law is moving in the direction of greater simplicity and flexibility. The spread of the holographic will is one example.
One important development has been the (partial) dethronement of the last will and testament. This document is no longer the centerpiece of succession. It has powerful rivals. People have alternatives—will substitutes. These have become more and more popular, for rich and poor alike. The Totten trust is flourishing. This is within the reach of anybody with a bank account. Estate planners are vigorously, and successfully, peddling “living trusts,” which bypass the probate court.
There are, in short, alternative ways of disposing of one’s earthly goods. Of course, the will remains important. And it remains, in most regards, still rather rigid and formal; but less than it was. The change may be in part because of a general decline in “formalism.” But it also reflects the rise of will substitutes, which are much less formal. Also, wills no longer seem to be vital documents of title, especially title to land. Land is less important in the economy than it was; and in any event, we have other, better ways to guarantee title and clear up ownership. In the future then, wills may become even less formal. The courts may go further in excusing mistakes. And we might get to see electronic wills, on-line wills, or video wills. The definition of “family” has also changed. Millions of couples live together without getting married. Some of these couples mate for years, or for life. Some produce or adopt children. Some of these couples are gay. Of course, one could always provide for a partner by will. But today, in some places, the law will do this for you, even without a will. The “family” is thus both broader and narrower than it once was: narrower in that it excludes more distant relatives, broader in that it tends to include (unmarried) partners.
Morgan Utah Probate Lawyer Free Consultation
When you need legal help with a probate, will, or trust in Morgan Utah, please call Ascent Law for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506