California Wills Flashcards
Capacity (4)
MINIMAL CAPACITY
(1) at least 18
(2) understand extent of property
(3) understand natural objects of bounty (devisees)
(4) must know nature of act
Consequence of lack of capacity
Entire will invalid
Insane delusion (4)
(1) testator has false belief
(2) false belief was product of sick mind
(3) not even scintilla of evidence to support belief
(4) delusion affected testator’s will
Consequence of insane delusion
Only that part affected by delusion invalidated
Fraud (5) (wills)
(1) representation
(2) of material fact
(3) scienter
(4) for purpose of inducing action or inaction
(5) in fact induces the action or inaction desired
Fraud in the exection
Forges testator’s signature –> entire will invalid
Fraud in the inducement
Wrongdoer’s representations affect contents of will –> only part affected by fraud invalid
Fraud in preventing testator from revoking will
Court will not probate will and it will go to heirs
Undue influence
Testator’s free agency subjugated
Prima facie case: (1) susceptibility; (2) opportunity; (3) active participation by wrongdoer; (4) unnatural result
Case law presumption: (1) confidential relationship (i.e. attorney-client, doctor patient, etc.); (2) active participation; (3) unnatural result
Statutory presumption: gift to person who drafted will, care custodian, relative of those two categories
Impact: PF or CL –> invalidation of portions impacted;
SP –> gift lapses
Mistake in content
Testator’s will names wrong beneficiary or makes wrong gift due to accidental omission or addition. Traditional rule allowed for no relief, but modern (2015) CA rule allows courts to reform or rewrite will to conform to testator’s intent
Mistake in execution
Testator signs wrong will. Generally probated, unless reciprocal wills (wife-husband sign each others’ wills) in which case it will be reformed
Mistake in description
Nothing fits a description or multiple things fit description. Modern CA: parol evidence to explain ambiguity. (Traditional rule only allowed parol evidence for latent, not patent, ambiguity.)
Dependent relative revocation (mistake in validity of subsequent testamentary instrument)
If T revokes will or portion of will in mistaken belief that a substantially identical will or codicil effectuates intent, then revocation of first is conditional and dependent on second will effectuating T’s intent. If 2nd does not effectuate intent, 1st will was never revoked
Pretermission (mistake regarding living children
Accidental omission of child born or adopted after will is executed –> takes an intestate share of estate.
Integration of will (2)
(1) intent for papers in question to have been part of will
(2) papers must have been physically present at time of execution
Incorporation by reference (4)
(1) document or writing
(2) in existence when will was created*
(3) clearly identified in will
(4) T intended incorporation (generally implied once establish 1-3)
*Doesn’t apply to list disposing of items of tangible personal property as long as (a) referred to in will, (b) writing dated and handwritten or signed, (c) writing describes items with reasonable certainty.
Facts of independent significance doctrine
Allows courts to fill in the blanks to testator’s will with parol evidence that is trustworthy. Ask: even without this will, would this fact have existed?
Intestate succession
CP / QCP –> decedent’s share goes to surviving spouse
SP –> all to surviving spouse if no other heirs; 1/3 or 1/2 depending on number of children
Intestate inheritance to heirs
Per capita if all are of same degree of kinship, per capita with right of representation (equal shares at first generation at which there are living takers)
Order of successors
(1) issue (kids); (2) parents; (3) issue of decedent’s parents
Establishing nonmarital child’s relationship to father (3)
(1) presumption (attempts to marry, etc.)
(2) holding out child as own
(3) by judgment
Simultaneous death
Is an issue, generally if can’t be established by clear and convincing evidence that heir outlived, legally predeceased
Disclaimer (6)
(1) writing
(2) signed by disclaimant
(3) identify decedent
(4) describe interest being disclaimed
(5) state that there is a disclaimer and exetnt of it
(6) filed within reasonable time (~9 mos of learning of interest)
Prohibited beneficiaries
(1) slayers (proof of killing by preponderence)
(2) elder abusers/neglecters
(3) aliens (common law only)
Conflict of laws (wills)
personal property –> decedent’s domicile
real property –> law of situs
Requisite formalities of attested wills (5)
(1) writing
(2) signed by T
(3) in presence of at least two witnesses
(4) witnesses must sign during T’s lifetime
(5) witnesses must understand doc is T’s will
Holographic wills
Allowed in CA as long as signature and material provisions of will in T’s own handwriting
Statutory will
(1) T fills in blanks and signs
(2) two witnesses must observe signing
(3) each witness must sign in presence of T
Revocation by written instrument
Express revocation –> revoked by later valid will or codicil
Implied revocation –> revoked by implication from the terms of a subsequent instrument
Revocation by physical act
Will burned, torn, canceled, obliterated, or destroyed with simultaneous intent to revoke
Revocation by operation of law
New spouse –> may take intestate share of decedent’s estate
Dissolution of marriage –> old spouse cannot take (gift revoked)
Ademption
Gift fails because it is no longer in the estate. California takes testator’s intent into consideration to avoid harsh effects of ademption
Abatement
Process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises. (starts with intestacy gifts)
Will substitutes
Nonprobate assets (life insurance, trusts, deeds, etc.). Pass to beneficiary or survivor.
