Execution and Revocation of Wills Flashcards
Does California recognize wills that were not executed in California?
Yes, a will shall be valid in California if it was not executed in California, so long as:
1) It conforms with the law of the place it was executed; OR
2) If conforms with the law of he state where testator was domiciled at time of execution or death
What is a codicil?
A codicil is a supplement to a will that alters, amends, or modifies the will instead of replacing it.
How is a codicil valid?
Must conform with all the same formalities of a will (attested, holographic.
NOTE: For codicils made by a conservator, must have been through a court order!
Revocation by Subsequent Instrument
A testator may revoke a will by executing a subsequent will or codicil that revokes the will in whole or in part.
Such revocation can be express or implied.
Express Revocation
A subsequent instrument may expressly revoke a prior instrument by explicitly naming the prior instrument and using language that supports an intent to revoke.**
Implied Revocation by Inconsistency
A will can be revoked through a subsequent instrument if the latter instrument has terms that are inconsistent with the prior instrument.
What are the requirements for a valid attested will?
Requires:
1) Testamentary Intent
2) Capacity
3) Wills Formalities
- Writing signed by testator
- Joint presence of two witnesses
- Both witnesses understood significance of testator’s act
What is the substantial compliance approach with the will fromalities?
Under California, a will that falls short of the required formalities will be treated as valid if the proponent of the will can show by clear and convincing evidence that testator intended the will to be their will.
What are the requirements for a valid holographic will?
Requires:
1) Testamentary Intent
2) Capacity
3) In testator’s writing
- Material provisions are handwritten
- Signed by testator
Does a holographic will need to be dated or witnessed?
No!
May apre-printed will be used as a holographic will?
Yes, so long as the material provisions are handwritten.
What is required for a testator to have testamentary capacity?
1) 18 years old
2) Possess sound mind at time of execution or revocation re: mental capacity
- Understands nature of act
- Understands and recollects nature and character of property
- Remembers and understands relationship with living family members
What are some common examples of proof that could show a lack of testamentary capacity?
Further, what is the presumption if such evidence is shown?
1) Deficit in alertness and attention
2) Information processing
3) Thought processes
4) Ability to modulate mood
5) Mental disorders involving delusions and hallucinations
6) Insane delusion (no factual or reasonable basis for belief, contrary to all evidence)
If testator lacked capacity during will formation, rebuttable presumption that will was executed under incapacity.
When can a testator revoke their will?
A testator can revoke their will any time prior to their death.
Can do so wholly or in part.
Revocation by Physical Act
A testator can revoke a will through a physical act. Includes:
1) Burning
2) Cancelling
3) Tearing, Obliteration, Destroying material provision
Must show intent to revoke alongside act
What examples of nonprobate transfers?
Is an inter vivos transfer of property that avoids probate.
Includes:
1) Joint tenancy property
2) Revocable trust
3) Insurance
4) Payable on death account
What is the presumption regarding a lost will?
A will not found at a testator’s death will create a presumption it was revoked by physical act.
Proponent must show clear and convicing evidence that will existed. Can use duplicates, but duplicates cannot be admitted.
What is the Dependent Relative Revocation?
A will or portion that is revoked on a mistake basis of law or fact can be revived.
The test is that the testator would not have revoked the will *but for the mistake**.
ESSAY TIP: For an attested will do both witnesses need to view the testator sign the will?
Yes all witnesses need to be present when the testator signs the will.
ESSAY TIP: For an attested will, do all witnesses need to be present when the witnesses sign?
No, under California, the witnesses need not sign in each other’s presence or at the same time.
Disinterested Witnesses
At common law, a witness with a direct pecuniary interest under a will would not be competent to witness it’s execution.
However, under California law, even an interested witness is competent and the will is valid.
May a testator execute a will when someone signs in their place?
Yes, so long as there is evidence that the testator intended for the person to sign for them and is within their presence.
ESSAY TIP: Even with California’s interested witness exception, what issue is raised?
An interested witness creates the rebuttable presumption that the will was executed under undue influence.
But this can be rebutted!
ESSAY TIP: For spouses and children, what should you always mention, even if these people don’t take under the will?
Intestacy shares!!!!
