Components of a Will

Question 1

Integration

Answer 1

The papers that make up a will. Two elements: (1) intent; and (2) presence (paper must have been actually or physically present at the time of execution)

Stapling raises inference that testator intended papers to be part of the will and were physically present

Can also raise inference by logical connection, extrinsic evidence, or testimony

Question 2

Codicil

Answer 2

Modifies a previously executed will and must itself be executed with the SAME FORMALITIES

NOTE: any alterations on the face of the will are invalid unless if it is reexecuted with proper formalities or if it qualifies as a holographic codicil

Question 3

Republication by Codicil

Answer 3

Will is treated as having been executed on the date of the last codicil

Question 4

Incorporation by Reference

Answer 4

Document may be considered part of the will if: (1) the document was IN EXISTENCE at the time the will is executed; (2) it was SUFFICIENTLY DESCRIBED in the will so that identification is clear; and (3) there was SATISFACTORY PROOF that the proffered document is the document described in the will

Question 5

List Disposing of Tangible Personal property

Answer 5

California exception to Incorporation by reference

Decedent may dispose of items in a writing that does not meet incorporation y reference if: (1) the will is unrevocable and refers to the writing; (2) the writing is dated and is EITHER in the testator’s handwriting or signature; and (3) the writing describes the items and the recipients with reasonable certainty

Writing can be made before or after execution of the will and can be altered after it is prepared

NOTE: total value of personal property in the writing may NOT exceed $25K, nor may any one item exceed $5K

Question 6

Facts of Independent Significance

Answer 6

Will may dispose of property by reference to acts and events, even though they are in the future and unattested, if they have SIGNIFICANCE APART FROM THEIR EFFECT ON DISPOSITIONS MADE BY THE WILL

Ask yourself if the act would exist even w/o the will. “I leave all my property tot he people i will name on a note tomorrow” does not meet this requirement. No incorporation by reference, no independent significance. But maybe CA exception applies

Question 7

Pour Over Wills

Answer 7

Three ways to validate pour-over provision and get the trust admitted into probate: (1) incorporation by reference; (2) independent significance; or (3) Uniform Testamentary Additions to Trusts Acts adopted by CA

(3): CA permits pour-over of estate assets to an inter vivos trust if the trust is IDENTIFIED in the testator’s will and its terms are set forth in a WRITTEN INSTRUMENT OTHER THAN A WILL, executed before or concurrently with the execution of the will (no need to be in existence at time of executing the will)