Execution of Wills

Question 1

1. Capacity

Answer 1

The testator must (ARE18):

1. understand the action he is taking,
2. understand who is receiving his/her property,
3. understand the extent of his/her property, and
4. be at least 18 years old,

If testator lacked capacity at any time during which the will could have been executed, there is a rebuttable presymptiom that the will was execuged during the period of incapacity.

Question 1

2. Capacity Exception - Conservator

Answer 1

A court can appoint a conservator for a person who lacks capacity. The court can authorize the conservator to create a will for the person.

A conservator has a fiduciary duty to the testator when creating the will. The duties include a duty of care (act as a reasonable person) and a duty of loyalty (no self-dealing).

Question 2

3. Testamentary Intent

Answer 2

The testator must
understand he is executing a will and intend for it to have testamentary effect,
and must generally know and approve of its contents.

Question 3

Type of Will: Attested Wills

Answer 3

1. Writing
2. Signature of Testator
3. Signed in joint presence of 2 witnesses. If not, must expressly or implied 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.

Question 4

Attested Will: Interested Witness

Answer 4

A witness who has a financial interested in the will is an “interested witness” In CA, a will can be valid despite the presence of an interested witness.

But see - rebuttable resumption

Question 5

Attested Will: Interested witness - rebuttable presumption

Answer 5

A rebuttable presumption is created that 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 (the witness will not take under the terms of the will).

If an interested witness is a family member of the testator, he/she will not take under the terms of the will, but will take an intestate share.

Question 6

Attested Will: Interested Witness Remedy - Republication by Codicil

Answer 6

A valid codicil executed after the original will cures any interested witness problems that existed during the execution of the original will. The interested witness will not be considered an “interested witness” and he/she will take under the terms of the new codicil.

Question 7

Type of Will: Holographic (Handwritten) Will

Answer 7

• Testator must handwrite the MATERIAL PROVISIONS (beneficiaries, items they receive).
• Signed by testator
• Need intent of testator that document intended to be a will
• CA: No witness requirement
• No need date

A preprinted will form can be a valid holographic will if the material provisions are handwritten.

Question 8

Valid Attested Will opening statement

Answer 8

A valid attested will requires testamentary intent, capacity, and compliance with will formalities. Will formalities require a writing signed by the testator, in joint presence of two witnesses, and the witnesses need to sign and understand that what they signed was the testator’s will.