Execution of Wills Flashcards
Capacity requirement for a will?
- testator must be 18
- understand the action he is taking
- understand the extent of his/her property and understand who is receiving his/her property.
What does a conservator do?
A court can appoint a conservator for a person who lacks capacity. The court can authorize the conservator to crate a will for a person
What are the Fiduciary Duties for a conservator?
duty of care(act as a reasonable person) and duty of laoyalty( not self dealin)
What is Testamentary Intent
it is when the testator understands that he is executing a will and intend for it to have testamtary effect, and must generally know and approve of its conents
What are the requirements of a will?
Must contain writing and a signature and be witness
What is the writing requirement of a will?
The will must be in writing and signed by the testator
What is the witness requirement of a will
The will must signed in the joint presence and attested to by two witnesses, and if the T doesn’t sign in the presence of witnesses, hems expressly or impliedly acknowledge his signature to them before they sign. each witness must be of sufficient. mental capacity and maturity and aware that the instrument is a will.
What is an interested witness
a witness who has a financial interest in the will, in CA. will will be valid despite the presence of an interested witness.
What is the rebuttable presumption created regarding an interested witness?
the interested witness/devisee exerted undue influence over the testator. If the presumption is not rebutted, the witness takes his/her intestate share of the will
What occurs with a republication by Codicil?
a valid codicil executed after the original will cures any interested witness problems that existed during the execution of the original will
What occurs if a will isn’t under substantial compliance under the CA.
If a will isn’t executed in compliance with the law, the will is treated as if it had been executed in compliance, if the propellent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute testators will.
What is a holographic Will?
A holographic will is a handwritten will that must
- T must handwrite the material provisions of the holographic will. Material provisions include the beneficiaries of the will and the items that they will receive. A preprinted will form can still be a valid holographic will, as long as the “material provision” are handwritten
- T must sign the instrument
- No witness requirement: although it need not be witnessed or dated, it must be clear that T indented the document to be a will.
What is a codicil?
A codicil is a supplement to a will the alters, amend, or modifies the will, rather than replacing it. Generally, a codicil must be executed with the same formalities as a will
What must a valid codicil containt
- Repub date: republished date of the codicil
- Cure Invalid Will: A valid codicil executed after the original will cures any problem that existed of the will, including an interested witness. The interested witness will not be considered an “interested witness” and will take under the terms of the new codicil.
- Attested Will and Holo Codicil: A valid attested will can be altered, amended or modified by a holographic codicil
What is a will substitute?
A deed is a will substitute and it can serve as a will substitute for transferring prop upon the death of the landowner. If a grantor delivers a deed to a third party (agent) with instructions to give the deed to a person upon the grantors death, the deed will serve as a will sub and the deed will be transferred to grantee upon grantors death
