1) Intro Flashcards
CA wills: children
all treated the same – bio, adopted, halfblood, illegitimate
CA wills: former families
yes recognized
CA wills: domestic partners
yes recognized, same as spouses
approach / 3 areas of concern
1) validity
2) revocation + revival
3) distribution
approach: validity: subareas
1) capacity
2) intent
3) formalities
clean-up issues
1) is there anyone who can claim statutory authority to override the will?
2) any property left over that doesn’t pass under the will?
3) probate process
4) will substitutes, nonprobate transfers
validity: capacity: when measured
at moment of will execution
validity: capacity: requirements
1) proper age
2) sound mind
proper age
18+ OR emancipated minor
sound mind: def
must have ability to understand
1) nature of testamentary act (he is creating a will)
2) nature + situation of his property
3) his relation to his living descendants
natural objects of his bounty: def
living descenants – spouse, parents, anyone else whose interests are affected b the will
sound mind: presumption
presumed yes sound mind
sound mind: BOP
IF challenged through will contest and evidence of lack of capacity THEN proponent of will must show that YES capacity by preponderance
who can bring will contest?
anyone who has interest in the distribution fo the estate
insane delusion: affect on sound mind
depends on if affects a disposition
insane delusion: def
mental disorder w sx including delusions or hallucinations, resulting in devising property in a way he would not otherwise do
insane delusion: yes affects a disposition: result
will still valid,b ut affected disposition will be cut out (coudl fall to intestacy)
insane delusion: no affects disposition: result
does not affect validity
intent: def
at time of execution, testator must intend that THIS document be his will
intent: wouldn’t satisfy
1) letter saying how you’re planning to make your will later (even if meets reqs for holographic)
2) sham will (joke, ot intended to be valid)
3) conditional will + condition hasn’t occurred
conditional will: reqs
condition must be clearly spelled out
conditional will: PER
can’t use parol evidence to attach a condition to an otherwise unconditioned will
ways to undermine intent
1) undue influence
2) fraud
3) mistake
undue influence: def
mental or physical coercion used to control testator’s disposition. Actions of another person that substitute the will (desires) of that person for the will of the testator
undue influence: BOP
on the person attacking the will/capacity. high standard.
once presumption has arisen, shifts to other to prove that will NOT induced by UI
undue influence: factors
1) whether rship btwn testator and person allegedly unduly influenced afforded an opportunity to control the testamentary act
2) testator’s condition makes him susceptible to UI
3) provisions of will deviate radically from expressed intentions of testator prior
4) person who allegedly committed undue influence active in will’s procurement
5) person unduly profited as beneficiar under the will
undue influence: result
1) provision that was result of UI will be invalidated
2) if UI affects the whole will, can invalidate whole will
fraud: types
1) in the execution
2) in the inducement
fraud in the execution: def
1) fraud re nature or contents of writing itself
fraud in the exeuction: result
will is invalid
fraud in the inducement: def
intrinsic facts that induce someone to take action that affects the distribution. (false claim to be your child)
Test: would testator have made this gift if knew the true facts?
fraud in the inducement: result
if would have made the gift even knowing the true facts, then ignore
if would NOT have made the gift if had known true facts, must invalidate the gift
mistake: types
1) in the execution
2) in the inducement
mistake in the execution: def
mistake as to the nature of the document
mistake in the execution: result
will invalid
mistake in the inducement: def
testator executes a will or clause bc is mistaken as to the true facts
mistake in the inducment: result
does NOT affect intent. NO RELIEF.
