California Wills Flashcards
Capacity of a testator (California).
Capacity is measured at the time of execution. Testator must be at least 18 years of age and of sound mind, which includes understanding the nature of the** testamentary act**, the nature and situation of property, and relations to living descendants, spouse, parents, and others affected by the will.
Example: A testator who is 17 years old lacks the capacity to execute a valid will.
Testator and issues affecting intent (California).
Testator must intend the document to be their will at the time of execution. Undue influence, fraud, mistake, and sham or conditional wills can affect testamentary intent.
Example: Undue influence by a family member may impact the testator’s true intent.
Formalities to execute a will (California).
A will must be in writing, signed by the testator or someone in their presence and direction, and witnessed by at least two competent witnesses who understand that the document is the testator’s will.
Example: Failure to have the required witnesses may result in an invalid will.
Revocation and revival of a will (California).
Revocation can occur by a subsequent testamentary instrument or physical act (e.g., burning, tearing). Revival requires re-execution with proper formalities or incorporation by reference in a subsequent valid will or codicil.
Example: A testator burns their old will to revoke it and creates a new will to replace it.
Colorable challenges to the will (California).
Challenges include lack of testamentary capacity, undue influence, fraud, mistake, and issues with execution formalities. Interested persons have standing to contest the will.
Example: A child of the testator may challenge the will if they believe they were unfairly excluded.
What documents or acts comprise part of the will (California).
Integration includes documents present at execution and intended to be part of the will. Incorporation by reference and acts of independent significance are also considered.
Example: A separate letter referenced in the will may be considered part of the document.
How Wills are construed (California).
Wills are construed according to testator’s intent. Statutory rules such as the omitted spouse or child statutes, elective share, and anti-lapse statute may override will provisions.
Example: The omitted spouse statute may ensure that a spouse receives a share of the estate even if not mentioned in the will.
Property not passing by will and proper distribution (California).
Non-probate assets, such as joint tenancy, TOD/POD accounts, life insurance, and trusts, pass outside of the will. These assets are distributed according to their terms.
Example: A jointly owned property automatically passes to the surviving owner and is not governed by the will.
Law of Decedent’s Estates (California)
The law of decedents’ estates determines where a decedent’s property goes at death, based on the circumstances at the time of death, and includes testate (will) and intestate (no will) succession.
Example: If a person dies without a will, the law of intestate succession dictates how their assets are distributed.
Transfer at Death (California).
Any transfer at death is a probate transfer, whether through testate or intestate succession. Distinguish between probate assets and non-probate assets, which pass outside of probate.
Example: Life insurance proceeds designated to a specific beneficiary pass outside of probate.
DELETE
What is a will (California)?
A will is a written instrument that dictates how a person’s estate is to be distributed upon death, including codicils and other instruments appointing an executor or revoking/revising an earlier will.
Example: A will may also include provisions for guardianship of minor children.
Validity of a will (California).
A will must meet three requirements to be valid: proper capacity, testamentary intent, and execution in conformance with applicable formalities.
Example: A will lacking any of these elements may be deemed invalid by the court.
Testamentary Capacity (California).
Testator must be at least 18 years old and of sound mind, understanding the nature of the testamentary act, the nature and situation of their property, and their relations to living descendants, spouse, parents, and others affected by the will.
Example: A person suffering from severe dementia may lack the required testamentary capacity.
Testamentary Intent (California).
At execution, the testator must intend the document to be their will. Issues like undue influence, fraud, mistake, and sham wills can affect testamentary intent.
Example: If a testator believes they are signing a different document, their true intent may be in question.
Undue Influence (California).
Occurs when another person uses mental or physical coercion to control the testator’s disposition. Factors include the relationship, susceptibility, deviation from prior intentions, activity in procurement, and undue profit.
Example: A caregiver pressuring a vulnerable elderly person to change their will in their favor.
Fraud in Execution vs. Inducement (California).
Fraud in execution involves deceit about the nature or contents of the writing itself, making the will invalid. Fraud in inducement involves deception about intrinsic facts, affecting distribution but not necessarily invalidating the will.
Example: Misrepresenting the contents of a will document to obtain a signature constitutes fraud in execution.
Mistake in Execution vs. Inducement (California).
Mistake in execution involves error about the nature of the document, invalidating the will. Mistake in inducement involves error about facts leading to the will’s execution, not affecting testamentary intent and providing no relief.
Example: A testator mistakenly believing they are signing a different legal document than a will.
Formalities of an Attested Will (California).
A will must be in writing, signed by the testator or someone in their presence and direction, and witnessed by at least two competent witnesses who understand the document is the testator’s will.
Example: Witnesses may need to confirm that the testator appeared to be of sound mind during the signing.
Holographic Wills (California).
A holographic will is handwritten and signed by the testator, with material provisions in the testator’s handwriting. It does not require witnesses but must show testamentary intent.
Example: A handwritten will found in the testator’s personal effects may be considered a holographic will.
Out-of-State Wills (California).
A will executed out-of-state is valid in California if it complies with California formalities, the law of the place of execution, or the law of the testator’s domicile at the time of execution or death.
Example: A will executed in Nevada by a California resident may still be valid in California if it meets certain requirements.
Codicils (California).
A codicil is a document that modifies, explains, or adds to a will, without replacing it entirely.
Example: A codicil may amend specific provisions of an existing will without completely revoking the original document.
Revocation of Wills (California)
A will can be revoked by a subsequent testamentary instrument or a physical act (burning, tearing). Revocation must be done with the same capacity as required for executing a valid will.
No additional information.
Revival of Wills (California)
A revoked will can be revived by re-execution with proper formalities, a codicil referring to the revoked will, or circumstances showing intent to revive the first will when a subsequent will is revoked.
No additional information.
Dependent Relative Revocation (California)
If a testator revokes a will intending to make a new one, and the new will is ineffective, the earlier will remains in effect to the extent the later will is ineffective, reflecting probable intent.
No additional information.
