Did Decedent Left Property Behind + Will? Flashcards
What are tha requirements for a valid will?
A valid will requires testator have (1) testamentary capacity, (2) testamentary intent.
What are the requirements for testamentary capacity?
Testamentary capacity requires (1) 18 years or older, (2) sound mind.
How does a court determine sound mind?
- No mental disorder
- understand the nature and extent of property,
- relation to beneficiary
- nature of testamentary act
What issues arise regarding testamentary intent?
Fraud, Undue Influence, Mistake, Sham Wills, Conditional Wills
What are the required will formalities?
A will requires certain formalities, either (1) attested formal will, or (2) holographic will
What is required for a formal attested will? (5 things)
An attested formal will is: (1) in writing, (2) signed by testator (or another at testator’s direction and presence) (3) signing or acknowledgement in joint precedence of 2+ witnesses, (4) signed by 2+ witnesses during testator’s lifetime (can be separate), and (5) witnesses understand instrument being witnesses is a will.
What is required for holographic will?
A holographic will is (1) signed by testator with (2) material provisions in testator’s handwriting.
(No witnesses need to be present)
What is a valid codicil?
A codicil is an alteration to an existing will, requires formalities to be valid by either being (1) attested to, or (2) holographic.
What is incorporation by reference?
A testator may incorporate by reference a separate document into a will when (1) document is in existence at execution, (2) will shows intent to incorporate, and (3) the writing is described in the will.
How can a will be revoked?
A will may be revoked in whole or in party by (1) subsequent instrument, (2) physical act, or (3) lost will.
What is revocation by subsequent instrument?
A testator making a new will or codicil (Will 2) that expressly or impliedly revokes a previous will (Will 1). The subsequent will may be either (1) attested formal will or (2) holographic.
What is the Dependent Relative Revocation?
Where a will “wasn’t really revoked” the dependent relative revocation doctrine cancels a revocation based on mistake of law or fact. The revocation is set aside, and the revoked will remains in force.
Under DRR if a testator revoked will by subsequent instrument, is extrinsic evidence admissible to show mistake?
No.
If subsequent instrument is defective, does DRR apply?
No, because first revocation was also inefective, meaning DRR is inapplicable.
What if there is an ambiguity in the language of the will?
If content is ambiguous in will, CA permits extrinsic evidence to determine testators intent.
