2) Formalities

Question 1

kinds of wills

Answer 1

1) witnessed

2) holographic

Question 2

formalities: witnessed will

Answer 2

1) in writing
2) subscribed (signed by testator)
3) signed by wits
(substantial compliance)

Question 3

formalities: witnessed: signed by testator: def

Answer 3

1) signature is whatever act testator intends to authenticate the doc
2) signature can be anywhere on the doc
3) sig does not have to be by testator’s hand, provided done at direction of testator + in testator’s presence

Question 4

formalities: witnessed: signed by witnesses: def

Answer 4

1) wits must see the testator sign, OR see/hear the testator ack a preexisting signature to them. order of sig doesn’t matter
2) need 2+ competent, disinterested wits
3) wits must know they’re witnessing a will, but dnnk contents

Question 5

formalities: witnessed: signed by witnesses: NOT a req

Answer 5

NOT req’d that wits sign in testator’s presence, OR each other’s presence

NOT req’d taht testator sign first

Question 6

formalities: witnessed: interested wits: def

Answer 6

a witness AND a beneficiary

Question 7

formalities: witnessed: interested wits: result

Answer 7

presumption that wit got the devise by duress, fraud, or undue influence.

interested wit must rebut

if can’t, the gift to the interested wit fails (tho still can get what would be her intestate part)

BUT IF 2+ disinterested wits, it’s ok that there are also interested wits

Question 8

formalities: witnessed: substantial compliance

Answer 8

even if witness req. not satisfied, will will still be valid if
clear + convincing evidence that
at time of signing, testator intended the doc to be his will

Question 9

holographic will: reqs

Answer 9

1) signed by testator
2) material provisions in testator’s handwriting
3) date not req’d
4) wits not req’d
(always consider intent)

Question 10

holographic will: reqs: signed by testator: def

Answer 10

as with the attested will, sig is whatever act the testator intends to authenticate the doc
–can be anywhere, with any mark

Testator himself must sign! no sig by proxy!

Question 11

integration: issue

Answer 11

which papers and terms are part of the will?

Question 12

integration: rule

Answer 12

only the pages / docs actually present at execution and intended to be part of the will (at time of execution)

Question 13

incorporation by reference: rule

Answer 13

ok to incorporate by reference if

1) the separate doc exists at time will is executed AND
2) the will clearly identifies the separate doc

Question 14

acts of independent significance: def

Answer 14

ok for will to dispose of property by reference to acts/events that are significant apart from their effect on the dispo in the will. Event must be happening for some reason independent from its role in distributing property (ex. employees)

Question 15

using extrinsic evidence: when

Answer 15

1) plain meaning rule – not if language is unambiguous

2) only if ambiguous

Question 16

plain meaning rule

Answer 16

if language of will is unambiguous, evidence NOT admissible to contradict plain language. challenger can’t try and show testator made a mistake.

Question 17

yes ambiguous: use of extrinsic evidnece

Answer 17

is ok (for either kind of ambiguity), to show:

1) intent
2) help construct
3) choose among different possible meanings

Question 18

ambiguities: kinds

Answer 18

1) patent

2) latent

Question 19

patent ambiguity: def

Answer 19

appears on the face of the will (half to 3 ppl)

Question 20

latent ambiguity: def

Answer 20

“sister John”: is ambiguous in light of extrinsic facts

Question 21

extrinsic evidence: what kinds can use?

Answer 21

NOT oral declarations of testator

Question 22

third party will

Answer 22

you want your property devised according to someone else’s will

ok if the friend’s will exists at time of yorus (incorporation by reference). If he changes it later or it didn’t exist, must qualify as act of independent significance

Question 23

codicils: def

Answer 23

later testamentary instrument that alters, amends, or modifies a previously executed will

Question 24

codicils: reqs

Answer 24

must be executed w same testamentary formalities as a will

BUT dnn to be in same format as will it’s amending (one can be attested, other holographic)

Question 25

codicil: effect

Answer 25

1) validly executed c. republishes the will as of the date of the c., even if it doesn’t say that it does
2) modifies, but does not replace, existing will (unless codicil expressly revokes the existing will or irreconcilable inconsistencies)

Question 26

codicil: effect of republication

Answer 26

will and codicil are viewed as one instrument. INterpret according to circs and law in effect at time of republication

Question 27

will executed outside of california is valid in CA if:

Answer 27

1) executed in compliance w CA law OR
2) the law in place of execution at that time OR
3) law of place where testator was domiciled–at time of execution or time of death