Advise a client whether a parent's handwritten will with one witness can be admitted to probate. You have 60 minutes. To: Associate. Use the File and the Library only, then compare your draft with the rubric and the model answer below.
The assignment
To: Associate. From: Grace Lindqvist, Partner. Re: Estate of Walter Amaro. Our client, Teresa Amaro, is the daughter of Walter Amaro, who died last month. His last will, dated last year, leaves the house to Teresa and the rest to her brother Paul. Only one person witnessed the signing. Please draft a letter to Teresa, in plain language, explaining whether the will can be admitted, what she needs to prove, and what happens if the will fails. Use only the Library and do not give a guarantee.
File
Client interview
Mr. Amaro signed the will at his kitchen table on April 12 of last year. His neighbor, Carla Ng, watched him sign and signed as a witness. No one else was there. A second signature line for a witness was left blank. Mr. Amaro typed the will himself and had told Teresa that Ms. Ng would 'make it official.' He was 79 and in good health. He died on August 3 of this year. Teresa found the will in his desk. If the will fails, Franklin's default rules would split the estate equally between Teresa and Paul, who are his only children.
Text of the will (excerpt)
I, Walter Amaro, being of sound mind, make this my last will. I leave my house at 18 Larch Lane to my daughter, Teresa Amaro. I leave everything else to my children in equal shares. I have signed this will on April 12 in the presence of a witness. [signature: Walter Amaro] [witness: Carla Ng] [second witness line: blank]
Library
Probate Code, section 4-105 (Franklin)
A will is valid if it is in writing, signed by the testator, and signed by at least two persons, each of whom witnessed the testator sign or acknowledge the signature. A will that does not comply with this section may be treated as if it did if the proponent shows by clear and convincing evidence that the decedent intended the document to be the decedent's will.
In re Estate of Halvorsen, 40 Fr.3d 66 (Fr. Sup. Ct. 2011)
A decedent signed a will in front of one witness. The court admitted it. It held that the statute's dispensing power lets a court excuse a defect in execution, including a missing witness, when clear and convincing evidence shows the decedent intended the document as a will. The court considered the will's wording, the circumstances of signing, whether the decedent had said the document was a will, and the absence of any suggestion of fraud or coercion. The court cautioned that the power is not a way to admit a draft or a note the decedent never finished.
In re Estate of Berg, 46 Fr.3d 320 (Fr. Ct. App. 2015)
A decedent's typed document, unsigned by any witness, was offered as a will. The decedent had told two friends that the paper was 'just a draft' and that a lawyer would finalize it. Held: not admitted, because the evidence did not show the decedent intended the paper to be a final will. The court noted that the witness requirement protects against fraud, and that an unfinished document with a plan to sign later is the very thing the requirement guards against.
What graders look for in this task
Graders score a response against these criteria, and every one of them depends on using only the facts in the File and only the rules in the Library, so treat the list as a check for your draft after the first pass and again before you stop writing.
Writes in plain language addressed to Teresa
States that section 4-105 requires two witnesses and that the will has one
Explains the clear and convincing evidence path to validity
Applies Halvorsen to the facts: the will's words, the signing at the kitchen table, Ms. Ng's signature, and no fraud
Addresses Berg and the risk that a court views the document as unfinished, including the statement that Ms. Ng would make it official
Explains that if the will fails, Teresa and Paul split the estate equally and that the house bequest would be lost
Gives no guarantee and states what evidence to gather