Part I (Approximately 45 minutes)

1. Option A: The outcomes should match what every individual intestate decedent actually wanted to have
happen to her or his property at death; it is a subjective legislative question.

2. Under the per stirpes distribution approach, the estate is divided by the number of members in the first
generation of children who are (a) either alive or (b) death but survived by descendants e.g., children,
grandchildren and great grandchildren. Each member who is alive takes their share, and the shares of the
deceased members drop to the next generation.

In accordance with the per stirpes distribution rules, the Daughter would receive one-half of the estate, while
Arthur and Brenda would receive one-fourth each of the estate. This is because Arthur and Brenda receive Son
One’s one-half split as they are both the descendants of Son One. Further, the facts do not indicate that Son
Two is survived by any descendants, so no share is created for him since there is no one to represent him e.g.,
children/grandchildren and he would not receive anything.

3. Per capita with representation, also known as the modern per stirpes approach, works like the strict per
stirpes approach, except that the estate is divided equally among the living and deceased at the first
generation that possesses an alive taker.

Under this approach, the Daughter would receive one-half of the estate, while Arthur and Brenda would each
receive just one-fourth of the estate.

4. For the execution of a will to be valid, it must be in (i) In writing; (ii) Signed by the testator or in the
testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction;
and (iii) Either (a) Signed by at least two individuals, each of whom signed within reasonable time after the
individual witnessed either the signing of the will as described in paragraph (2) or the testator’s
acknowledgment of that signature or acknowledgment of the wil; OR (b) Acknowledged by the testator before
a notary public or other individual authorized by the law to take acknowledgments. Traditionally, under the
strict compliance rule, a will was rendered invalid if it did not meet all the requirements. However, the UPC’s
harmless error rule is more forgiving and an improperly executed will, which does not meet the formalities, is
still valid as long as there is (a) clear convincing evidence that the (b) testator intended the writing to be
viewed as his will.

Here, Vance’s will was in writing; signed by him; and observed and signed by his two assistants in his presence
shortly after he signed the will. He is in compliance with the formalities of the wills act. The facts do not
indicate that jurisdiction in question required witnesses to know the nature of the document that they were
witnessing. But even if it did, the fact that the witnesses did not know the nature of the document would not
dilute its validity as the facts indicate by clear and convincing evidence that Vance intended the document to
be his will, and the harmless error rule is more open to validating documents, even when all the formalities
are not adhered to. Contrastingly, if this jurisdiction followed strict compliance rule and required witnesses to

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know the nature of the document they were witnessing, the court would not likely find Vance’s will to be a
valid will, even though all the other formalities were satisfied i.e., writing, signing, presence etc.

Since the jurisdiction is question is not specified and UPC is the presumed jurisdiction, the document can
operate as Vance’s will even though the witnesses did not know the nature of the document that they
witnessed.

5. A will is invalid if the testator executed the will under undue influence. Undue influence occurs when a
person exerts such control and influence over the mind of the testator as to overcome the testator’s free will.

a. Prevailing rule: A contestant possesses the burden of proving that a will was procured by undue influence.
Direct evidence is not mandatory, and the trier of fact may infer undue influence from circumstantial evidence
if the following four elements are satisfied: a. The testator was susceptible to undue influence; b. The
wrongdoer had the opportunity to exert undue influence over the testator; c. The alleged wrongdoer had a
disposition (another way to describe motive) to exert undue influence and d. Causation: There was a result
appearing to be the effect of undue influence.

Here, susceptibility is there because the Testator was injured and recovering from a serious accident and
confined to a nursing home away from his immediate family, surrounded by strangers who he was dependent
on. Opportunity is met because the wrongdoer used this situation to exert her influence over the testator by
destroying letters, blocking calls, and making excuses for why Testator’s children were not there, essentially
convincing the testator that his family no longer cared for him and created a distance, an illusion that was not
real to begin with. Motive is met because the testator was wealthy with funds and confined to the nursing
home, and there were numerous chances/opportunities for the wrongdoer to fingagle and change his mind
about giving her the estate, which would not have existed at he been at home and with his family. Finally,
causation is seen because the circumstances indicate that the totality of the nurse-wrongdoer’s actions,
contributed to why the Testator changed his will i.e., the 2015 version left the estate equally to his son and
daughter; the 2018 one, after being repeatedly told by the nursue-wrongdoer that was deserted by their Son
and Daughter, messages of Nurse’s miserable life, and spending and inordinate time with her (including her
ego-boasting tactics), left everything to her. The facts do not indicate that the testator would have revoked
the way he did had it not been for the nurse’s influence. The Son and Daughter will be permitted to prove
these elements with circumstantial evidence, which is generally accepted in undue influence cases as direct
evidence is often hard to find.

In conclusion, the Son and Daughter might be able to set aside this new will on the basis of undue influence
through prevailing method.

b. Third Restatement: Pursuant to the Third Restatement, a presumption of undue influence arises when (a)
There is a confidential relationship existed between the testator and the wrongdoer. Tthe restatement
recognizes a dominant-subservient relationship as a basis for confidential relationship and (b) There are
suspicious circumstances present: the restatement looks at factors such as whether there was a decided
discrepancy between a new and previous wills; whether the property was disposed in a way that a reasonable
person would view it as unnatural, unjust or unfair; and the extent to which the donor was in a weakened
physical/mental condition and therefore susceptible to undue influence:
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Firstly, the dominant-subservient relationship is satisfied here because the nurse is the dominant caregiver
and the testator has no choice but to rely on her for all his needs because he is unable to fend for himself due
to the recovery period and has no one else to turn to, particularly his children, because he is at the nursing
home rather than his own home. Second, the suspicious circumstances are found as the testator was in a
weakened state mentally and physically due to the accident and the unfamiliar atmosphere of the nursing
home; the 2018 will was completely different from the 2015 one because the 2015 one did not most certainly
leave the entire estate to the nurse and no reasonable person would believe the disposition to be ‘natural’ or
fair based on the facts and the actions of the nurse.

In conclusion, as both factors are met, the Son and Daughter may a strong case for undue influence as defined
by the Third Restatement as well.

Part II (Approximately 45 minutes)

The issue is whether Tim possessed the mental capacity to execute his will and thereby revoke the old will.

Testamentary capacity requires the (i) testator to be 18 years old and (ii) of sound mind. Sound mind requires
the testator to have the ability to know. The ability to know is a low threshold where there is a presumption of
capacity, as described in Wright, where the burden to overcome the presumption of capacity failed as the
contestant only used isolated incidents of irregular behavior. Wright also stated that it was the duty of
witnesses to determine soundness of the testator at time of witnessing; they should not have signed if they
believed he was of unsound mind. To prevail in a will contest for lack of capacity, the contestant must prove
that the testator did NOT know or understand: (a) The nature and extent of his or her property, (b) The natural
objects of his or her bounty, (c) The disposition that he/she is making of that property; (d) Knew/understand
how these factors related to forming an orderly plan of disposing of his property.

Here, Tim is likely over 18, evidenced by the reference to the contestant UCLA, which is a secondary education
institution and likely only admits those over the age of 18. UCLA would likely contest the new will by pointing
to his mental capacity because the amount they would have received had it not been for the new will would
have likely been much higher. So, UCLA, to succeed, would have to prove that Tim, mid-heart attack, could not
have possessed the capacity to execute and revoke the previous will by signing the new will because of he was
fighting for his life. However, UCLA is likely to not succeed because Wi, with the help of Joe who also
witnessed everything, will be able to successfully show that Tim did have ability to know, as even after
surviving the heart attack, Tim did not ask to revoke the newly signed will for the old one. Wi will also
highlighted that Tim remained conscious and alert throughout the ordeal and was able to declare the will to
be his, recognized it and pass it to her and Joe. He did not show any confusion as to the nature and extent of
his property, the natural objects of his bounty, the nature of the testamentary act that he was performing, and
how everything fit together to lead to the orderly disposition of property. There was no confusion whatsoever.

In conclusion, Tim possessed the mental capacity to execute his will and thereby revoke the old will.

The issue is whether the signing violated the presence requirement.

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Pursuant to the formalities of the wills act, the testator must sign in the presence of witnesses and witnesses
must sign the will in the testator’s presence within a reasonable amount of time after witnessing the signing of
the will. Presence, under the traditional common law approach, is satisfied if the witness signs the will in the
testator’s line of sight i.e., the testator does not have literally/actually see the witnesses sign but must be able
to see them were the testator to look. Under the modern approach-UPC, presence is satisfied if a witness signs
the will within the testator’s range of sense i.e., the testator, through sight, hearing, or general consciousness
can comprehend the witness is signing.

Here, Joe’s signing satisfies both line of presence and conscious presence approaches as he was sitting next to
Tim and was within Tim’s sight and presence while he sign the will. Tim too could see him while he signed the
will. However, under the common law approach, the signing of the will by Wi would violate the presence
requirement as Tim could not likely completely see Wi signing the will as he was sitting directly behind Wi’s
driver’s seat. His view was blocked by the seat. Wil could not witness him signed either because her eyes were
constantly on the road, rather than as to what was happening at the back. However, the will is likely to be
found to be properly witness under UPC because Tim could likely hear and was aware of Wi signing at the stop
light, even if he could not directly see her and vice versa, which is enough to meet the conscious presence test.

In conclusion, the will was properly signed by Joe under both rules and by Wi under UPC.

The issue is that Wi and Joe could be classified as interested witnesses.

An interested witness is a witness a who will receive a gift under the will. Under common law, a will could only
be signed by at least two uninterested witnesses. Failure to do so would not completely void the will and the
will could still be admitted to probate, but the interested witnesses would be purged of any of their bequests.
Now many states, through purging statutes, purge witnesses from only benefits that an interested witness
would receive under a will that is in excess of what the witness would have received in intestacy. However,
under UPC-2505(b), interested witnesses are permitted, if not encouraged, and not required to forfeit devises
received under the will because of their interest. The rare and innocent use of a interested witness is not
penalized. However, a substantial devise to an interested witness could allude to suspicious circumstance and
the devise might be challenged on grounds of undue influence.

Here, Joe could not be classified as an interested witness, because the facts do not indicate he is receiving
anything under the will, and rather, he is just a third-party who incidentally became a witness because of the
emergency. However, UCLA may argue that Wi, could be classified as an interested witness because the will
leaves her half of Tim’s money. If the state in question has a purging statute, then would lose the amount that
is in excess of what she would not have received under intestacy. However, UCLA’s argument might not be
effective if the state adheres to the UPC, and W’s interest would not be forfeited, particularly because the
facts indicate that the situation at hand was an emergent one and Tim had not intentionally recruited her to
be a witness neither had she intentionally chosen that very moment for him to execute the will. She was a
witness for the lack of time and choice and the events at hand were in nobody’s control to give rise to a
presumption of undue influence.

In conclusion, Wi would be an interested witness: if the state has a purging statute, she may have to forfeit
some of the bequest received; but it if is a UPC state, she is not likely to have to forfeit anything received.

The issue is whether by signing the new will, Tim successfully revoked the previous will, in which UCLA was
entitled to all his money.
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A will or any part thereof is revoked either by: executing a subsequent will that revokes the previous will or
part expressly or by inconsistency; OR by performing a revocatory act on the will, if the testator performed the
act with the intent and for the purpose of revoking the will or part or if another individual performed the act in
the testator’s conscious presence and by the testator’s direction.

Here, Tim likely successfully revoked the previous will based on inconsistency, as evidenced by the content in
the new will, which unlike the previous one, only gave half of his money to UCLA.

In conclusion, based on the facts, Tim successfully revoked the previous will.

The issue is whether UCLA could argue that Tim was under undue influence at the time he executed the will.

Undue influence occurs when a person exerts such control and influence over the mind of the testator as to
overcome the testator’s free will. To prevail in a will contest for undue influence, the contestant must prove
the following elements: a. The testator was susceptible to undue influence; b. The wrongdoer had the
opportunity to exert undue influence over the testator, c. The alleged wrongdoer had a disposition (another
way to describe motive) to exert undue influence, and d. Causation i.e., result at hand appears to be the effect
of undue influence.

Here, UCLA may attempt to argue that Tim was susceptible as he was having a heart attack when he signed
the will and therefore physically and mentally weak; Wi had opportunity and disposition as she was his fiancé
and he was confined in a closed space and taken to the hospital for care, and Wi as the beneficiary as she
knew she was one of the beneficiaries and did not want to let-go the opportunity to get the possible money
she was eligible for. She in fact, had the presence of mind to grab the will even as Tim struggled instead of
tending to him first. The factors together caused Tim to revoke his old will to the new will in the car, which he
wouldn’t have likely done had it had the opportunity to sit with his attorney and work through the will under
calmer circumstances. However, Wi could rebut this presumption by pointing that Tim had will drafted prior
to the heart attack and the execution did not change any of the terms in the will; was conscious and alert
when he did execute the will which shows he was control of his senses; and did not change the will after
surviving the heart attack. Had it been undue influence, he would have put in the effort to make the necessary
amends after surviving the heart attack.

In conclusion, UCLA is not likely to be able to argue that Tim was under undue influence at the time he
executed the will.

Conclusion: Pursuant to UPC, Tim’s attorneys is likely to argue that the property must be divided between
UCLA and Wi based on the new will because Tim had testamentary capacity at the time of the execution, did
not violate the interested witness requirement; was signed by Wi in his conscious presence, properly revoked
and was not under undue influence re the execution because if he were, he would have raised some noise
about it before he died on food poisoning. If there were other minor errors missed, they would likely be
excused under the harmless error rule. Here, UCLA would/could attempt to cite the common law rules and
Strict Compliance to argue that Tim, mid-heart attack, could not possess only have possessed the capacity to
execute and revoke the previous will, even if he were conscious and alert. Wi was a interested party and had,
in fact, grabbed the will as they were leaving for the hospital, even though Tim did not ask her to, this gave
rise to a presumption of undue influence. Further, she did not sign in his line of sight, and this violated the
strict compliance rule. Since we are in America, where freedom of disposition and capitalism are honored,

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Court is likely to agree with Tim’s attorney and UPC, and the money is likely to go half to Tim and half to UCLA
instead of the full amount as originally stated to UCLA.

Part III (Approximately 45 Minutes)

a. Public Policy: The public policies that underpin the Wills Act stem from the concept of freedom of
disposition i.e., a person should have the ability to dispose his property after his death in any shape or form he
wishes, not encumbered by governments laws or power to confiscate the property; or policies that will
attempt to restrict his ability to make decisions about his property. Yes, a testator, through his will, has the
power to control his property even after his death. Such freedom is acceptable in America, unlike many other
countries, because the state wants to encourage people to work hard, enhance their wealth, and if possibly,
save some and pass property to family members, who, in turn, would be less likely to rely on public funds for
their needs. This freedom is only restricted if it is used in a manner that violates public policy or the
constitution e.g., precluding a devisee from ever marrying an individual of a certain religion. The fact that this
freedom leads to the concentration of wealth in the hands of the most privileged; and can deny opportunity to
those less privilege is not a reason to invalidate or dismiss it.

b. The proposal’s costs and benefits in light of those policies: As stated above, all individuals should have the
ability to dispose the property without any restrictions through wills. However, the Wills Act in our state
strictly requires certain requirements to be met when it comes to the execution of wills, including that of
presence - the testator must sign or acknowledge the will in the line of presence of at least two witness
present at the same time ie., testator does NOT actually have to see the witnesses sign, but must be able to
see them were the testator to look. This presence requirement is impossible to meet due to the risk of COVID
and state-at-home order, and triggers the risk of countless wills being declared invalid, and imposes risk as to
what will happen to the property at question and how it would be disposed. Even intetate distribution might
be challenging as courts are functioning on limited capacity and will not be able to keep up with the cases that
will come forward (assumption). This very risk of property not being disposed in line with the testators’
wishes, would conflict with the very idea of freedom of disposition. However, the proposal aids with some of
these concerns. First, it supports the freedom of disposition by allowing some flexibility to the execution
requirements through the electronic presence provision , particularly the electronic and remote notarization
allowances, which allows for wills to be executed and allows individuals to decide how they want their
property to be distributed upon their death, even if they cannot make it to the lawyer’s office or execute the
will in front of in-person witnesses (while still adhering to state policy regarding both wills and public safety).
This might even encourage more people, who until now did not have the time or funding or capacity to make
wills, to make theirs because of the flexibility and ease offered by the availability of electronic presence.
Second, the proposal’s audio and electronic options are likely to support even those who are very ill from
COVID or immunocompromised and give them the convenience to execute their wills and decide how they
want their property to be distributed after their death regardless of how last minute the decision is and how
close they happen to be to death.

(iii) Estate planning, whether by probate or non-probate modes of transfer, would remain feasible during the
stay-at-home order if the proposal is not enacted: Individuals, if permitted by the state, should consider
making holographic wills i.e., a will which does not need to be witnessed and hence does not have to comply
with formalities of the Wills Act. To have a valid holographic will, the will must written by the testator and
signed by him. The document must contain evidence marking/showing the decedent’s intent for the
handwritten document to be his will, even if it does not explicitly contain testamentary language. Without this
proposal, there would also be a number of non-probate options available as individuals, due to COVID and
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state-at-home, would not be able to comply with the state’s strict enforcement of the Wills Act Requirements.
There are four non-probate options available: life insurances i.e. the proceeds of a life insurance policy under
the decedent’s name are given by the insurance company upon the decedent’s death to the beneficiaries
identified in the insurance contract ; Joint tenancy i.e., one tenant’s interest in the property at death
extinguishes, and the surviving joint tenant owns the whole property ; Inter Vivos Trust i.e., when property is
distributed to beneficiaries in accordance with the terms of a trust that the decedent makes during his
lifetime; and Pay-on-Death (POD) and Transfer-On Death (TOD) Contracts, which are usually permitted by
pensions, mutual funds and banks and allow holders to put in beneficiaries who will get the property at the
holder’s death. Property may also be distributed in accordance with the state’s intestate laws to heirs and
spouses (depending on the intestate distribution rules but the UPC is a good reference).