In 2012, Testator wrote by hand a document labeled “My Will.” The dispositive provisions in that document read:
A. I give $50,000 to my cousin, Bob;
B. I give my household goods to those persons mentioned in a memorandum I will write addressed to my executor; and
C. I leave the balance of my estate to Bank, as trustee, to hold in trust to pay the income to my child, Sam, for life and, when Sam dies, to distribute the trust principal in equal shares to his children who attain age 21.
After Testator finished writing the will, he walked into his kitchen where his cousin (Bob) and his neighbor were sitting. After showing them the will and telling them what it was but not what it said, Testator signed it at the end in their presence. Testator then asked Bob and his neighbor to be witnesses. They agreed and then signed, as witnesses, immediately below Testator’s signature. The will did not contain an attestation clause or a self-proving will affidavit.
When the will was signed, Sam and his only child, Amy, age 19, were living. Testator also had an adult daughter.
In 2015, Testator saw an attorney about a new will because he wanted to change the age at which Sam’s children would take the trust principal from 21 to 25. The attorney told Testator that he could avoid the expense of a new will by executing a codicil that would republish the earlier will and provide that, when Sam died, the trust principal would pass to Sam’s children who attain age 25. The attorney then prepared a codicil to that effect, which was properly executed and witnessed by two individuals unrelated to Testator.
Two months ago, Testator died. The documents prepared by Testator and his attorney were found among Testator’s possessions, together with a memorandum addressed to his executor in which Testator stated that he wanted his furniture to go to his aunt. This memorandum was dated three days after Testator’s codicil was duly executed. The memorandum was signed by Testator, but it was not witnessed.
Testator is survived by his aunt, his cousin Bob, and Sam’s two children, Amy, age 24, and Dan, age 3. (Sam predeceased Testator.) Testator is also survived by his adult daughter, who was not mentioned in any of the documents found among Testator’s possessions.
This jurisdiction does not recognize holographic wills. Under its laws, Testator’s daughter is not a pretermitted heir. The jurisdiction has enacted the following statute:
Any nonvested interest that is invalid under the common law Rule Against Perpetuities is nonetheless valid if it actually vests, or fails to vest, within 21 years after some life in being at the creation of the interest.
- To whom should Testator’s estate be distributed? Explain.