Components of the Will Flashcards
What is integration? What is required for doc to be integrated?
integration=docs in the will. Requires Intent for it to be integrated and must be PRESENT at time of execution
proving integration
show physical attachment like staple, or words at beginning of one page match the next page
Incorporation by Reference; Definition and Elements
Non-Integrated doc is incorporated and given testamentary effect. ELEMENTS: 1) Doc/Writing 2)existed when will was executed 3)clearly identified in will 4) intended for doc to be incorporated (If 1-3 work, 4 is implied)
What if incorporated doc is invalid?
Does not matter, you can incorporate invalid deed, contract or invalid will of the testator even
Facts of Independent Significance
Who beneficiary is, or what gift is given can given meaning by facts of significance independent from testator’s will. Example: I leave all property to my church.
Facts of Independent Significance analysis:
Think to yourself “Would this independent fact or item exist even without the will?” so if you leave your car to John, doesn’t say exactly what car but you own a car and it exists independent of will.
Section 6132: Writing Disposing of Tangible Personal Property:
When a writing can be admitted into probate and given testamentary effect. Elements: Element ONE: 1) Must be referred to in will 2) Dated, 3)Signed or handwritten BY TESTATOR; Element TWO: writing describes items and recipients with reasonable certainty; THREE: executed BEFORE or AFTER the will; FOUR: directs tangible property (that is NOT cash/property for business) under $5k or $25k aggregate. p. 23 wills
How to incorporate “I give my car to the person identified on a note I executed Yesterday”. Writing on note says “2003 Honda CRV to Mary”, the CRV is not used for business
Gift analyzed under 1) Incorporation by Reference; 2) Facts of Independent Significance (under these facts this would not work b/c the note would not exist but-for the will) and 3) Section 6132: writing disposing of tangible personal property
pour-over wills
California permits pour-over of estate assets to an inter vivos trust as amended on testator’s death if: 1) trust identified in will AND 2) terms set forth in WRITTEN INSTRUMENT other than will AND 3) exectued BEFORE/CONCURRENTLY with execution of testator’s will.
(So long as you have a valid trust, which was in existence
before the will was executed, or at the time of execution,
the pour-over provision is valid by statute) p. 26 examples
How to incorporate stuff into will without using parol evidence:
1) Incorporation by reference, 2) Facts of independent legal significance, 3) 6132 4) Pour-Over Rule (Uniform Testamentary Additions to Trusts Act UTATA)
What is required to create valid will, what is it called?
Attested will: intent, capacity, and statutory requirements for will formalities must be met (1) In writing (typed works) (2) signed by testator (3) In the joint presence of 2 witnesses (or acknowledgment of her signature) (4) The witnesses know that it is a will and (5) the witnesses sign the document within the testator’s life
