Creation of Wills + Intestacy Flashcards
Will
Document executed by a testator/testatrix that takes effect at testator’s death
Usually re: property, but not necessarily
Includes codicil or testamentary instrument that:
-Appoints an executor OR
- Nominates a guardian OR
-Revokes or revises prior will OR
Expressly excludes or limits the right of an individual or class to succeed in intestate succession (negative will)
Requirements for Wills
1) Testamentary capacity
AND
2) Testamentary intent
AND
3) Compliance w/ appropriate formalities
Also applies to codicils, but can mix + match–ex. formal will, holographic codicil
Testamentary Capacity
Of sound mind at time will executed (low bar)
= have ability to understand
1) Nature, condition and extent of testator’s property AND
2) Nature of the disposition that testator making of his/her property AND
3) Names of and testator’s relationship to the natural objects of testator’s bounty
Most jx: must be 18+
Insane delusion can invalidate, but only to extent product/caused by delusion (think aliens are tracking you, will your UFO books to cousin–prob. fine–no causation)
Insane Delusion
Irrational belief with no basis in reality
Can invalidate a will/soundness of mind–but only to extent that gift/action product of the delusion
Having eccentric opinions, unique behavior (“I wear a tinfoil hat so the FBI can’t track me”) ≠ no capacity
Testamentary Intent
Must be present intent–intent that document under discussion = will
“I’m going to make a will and leave A this”–invalid
Void if:
1) Undue Influence
2) Fraud
3) Mistake
Undue Influence In General
In general: show
1) Wrongdoer exerted enough influence over testator that overcame testator’s free will AND
2) The influence caused testator to make a donative transfer testator would not have otherwise made
Presumption if:
1) Wrongdoer in confidential relationship with testator AND
2) Suspicious circumstances surrounding the prep, formulation or execution of will
Prove u. infl. –> void parts of will that benefit person exerting u. infl.
Confidential relationship re: undue influence
Broadly defined–can include children, spouses, caretakers, etc.,
Includes any relationship where testator relies on others for day-to-day affairs (ex. caretakers)
Suspicious Circumstances
Totality of the circ., ex.:
1) If testator in weakened condition physically/mentally, + susceptible
2) Extent of influencer in prep./procurement of will
3) If testator got indep. advice from attorney, disinterested advisor
4) If will prepared secretly/ in haste
5) If testator’s attitude to others changed due to rel. w/ influencer
6) If continuity of purpose through former wills (shows settled intent)
7) If r. person would regard as unjust, unnatural, unfair
NOT mere fact kids treated unequally/cut out
Presumption of Undue Influence
1) Wrongdoer in confidential relationship with testator AND
2) Suspicious circumstances surrounding the preparation, formulation or execution of will
Shown by clear and convincing evidence**–> burden on other party to show not u. influence
Fraud in the execution
Fraud re: nature of the contents or writing itself
Extrinsic– Is this document I’m signing a will? (ex. slip into stack of papers, say important loan docs)
Result = invalidate whole will
Fraud in the inducement
Intrinsic fraud re: facts that caused will to be written x way
Test: Would testator have made gift if knew the truth?
Must show:
1) Made knowingly false representation
2) For purpose of getting testator to make favorable will AND
3) Testator made different will than would have as a result of misrepresentation
Result = excise parts tainted by fraud–fall into residue or intestacy
Whole will tainted = invalidate will
Types of Mistake
1) In the execution–re: nature of doc–what type of thing signing (ex. think it is doctor’s note)
Result = will invalid
2) In the inducement–re: mistake re true facts that causes testator to make/not make will/clause
Result = no relief (v. v. rarely, if c+c evidence re: testator’s intent, may reform)
Formal Will Requirements
Formal (non-holographic) =
1) In writing AND
2) Signed by the testator OR in testator’s name w/ proper procedure AND
3) Witnessed or Attested/Acknowledged
In writing
Any reasonably permanent physical record
NOT electronic (v. few jx allow)
Broad def.–can be eggshells, fender, stucco interior of hotel room
Signature/Signed Req.
Anything made with intent to authenticate– indicates testator’s intent that document be will or mark is sig (ex. initial, “mom,” X, sometimes thumbprint)
Not req to be in particular place (ex. end, beginning)
Also valid if 1) in testator’s name, 2) in T’s conscious presence AND 3) at testator’s direction
Conscious presence CAN be w/in earshot–CANNOT be on phone
CAN be assisted signature
CANNOT be guided signature
Assisted v. Guided Signature
Assisted = assistance re: sig, but testator motivating force = OK
Guided–grabbing hand, moving pen for testator–might not be OK
Witnessed or Attested/Acknowledged Req.
1) Signed by at least 2 ppl, AND each signed w/in r. time of a) seeing T sign will OR b) T’s acknowledgement of sig. OR c) T’s acknowledgement of will (= witnessed)
OR
2) Acknowledged by testator before a notary public or other authorized individ. (= attested/acknowledged)
Witnessed
1) Signed by at least 2 ppl AND
2) Each signed w/in r. time of seeing T sign OR T’s acknowledgement of sig OR T’s acknowledgement of will
R. time ≠ before T’s death–can be OK if after (ex. deathbed)
Still valid if witnesses don’t sign in each other’s presence–can sign at diff. times, if w/in r. time
No publication required–DO NOT have to know signing will, read will, be specifically requested to sign
Contemporaneous Acts Rule
Some jx have–allows witnesses to sign before T signs IF acting with same event, act or time frame
Idea–like wills, want to encourage them to be valid
Attested/Acknowledged
Acknowledged by testator before notary public OR other individual authorized by law to take acknowledgements
Alt to witnesses–notary stands in lieu
NOT SAME as having notary involved in self-proving will–diff. role
Harmless Error Rule re: Wills
Even if defective/failed attempt, will be validated IF proponent of doc. proves by clear and convincing evidence that T intended doc to be T’s will
Integration Rule
Any pieces of paper present at execution that are intended to be part of will will actually be part of will
(i.e.–don’t need to sign/execute every page of will)
Witness Competence
Have ability to 1) observe testator affix signature AND 2) comprehend nature of act
Gen.–don’t have to be over 18 to witnessess
Interested Witnessess
= Witness who is also beneficiary
Maj./UPC–OK if interested–no effect on will (unless undue influence)
UPC–also OK if interested proxy
Min.–“purge” int. witness’ share–treat int. witnesses as if predeceased T
