Execution of Wills

Question 1

Capacity

Answer 1

(1) must be at least 18 years of age; (2) able to understand teh extent of her property; (3) must know the natural objects of her bounty (spouse, issue, parents); and (4) must know the nature of her act (that she is executing will, but no need to know technicalities)

If no capacity, entire will is invalidated and property passes via intestate succession

Exception: valid prior will may be reinstated

Question 2

Conservator

Answer 2

Look for a testator who is diagnosed with a medical disorder.

Mere appointment of a conservator or mental disorder is NOT alone sufficient to show incapacity. Go through the Capacity test.

Question 3

Testamentary Intent

Answer 3

Must have PRESENT intent to make a PARTICULAR INSTRUMENT her will

Question 4

Conditional wills

Answer 4

Parol evidence is NOT admissible to show that a will absolute on its face was intended to be conditional

Parol evidence may be brought in to show that instrument was not meant to have any effect at all though (sham will), but not that it was conditioned on something

Question 5

Sham Wills

Answer 5

Joke or sham wills are void. Parol evidence admissible.

Question 6

Valid Will Requirements

Answer 6

If not met, will is void (not merely voidable) and cannot be admitted to probate, even if there is no objection.

Requires that (1) the will is in writing; (2) the will is signed by the testator; (3) testator’s signature is in the joint presence of at least two witnesses; (4) two witnesses sign the will during the testator’s lifetime; and (5) the witnesses understand that the instrument being witnessed is the testator’s will

Question 7

Signature Requirement

Answer 7

Testator must sign or direct another to sign for him in testator’s presence (usually when incapacitated by a conservator)

Any mark affixed with the intent that it operate as a signature satisfies this requirement

Does not necessarily need to be signed at the end of the document

Question 8

Witness Requirement

Answer 8

Will must be signed by at least two competent witnesses before testator dies. Need not sign in the presence of the testator or each other

HOWEVER, both witnesses must be present and in the presence of the testator when she signs

If testator signs alone or in the presence of just one of the witnesses, testator may ACKNOWLEDGE his signature or the will in the presence of the two witnesses, present at the same time, to meet this requirement

Question 9

Interested Witnesses

Answer 9

interested witnesses are competent to be witnesses, but presumption that will was executed under duress, fraud, or undue influence

NOT automatically invalidated

NOTE: if there are at least two other disinterested witnesses, cleanses of the conflict

Question 10

Harmless Error Doctrine

Answer 10

A will or codicil that is NOT executed in compliance with the witnessing requirements may nevertheless be admitted to probate if the proponent of the will established by CLEAR AND CONVINCING EVIDENCE that, at the time the testator signed the document, he INTENDED it to constitute his will

Only applies to witnessing requirements. Cannot use this doctrine if will is problematic because of a lack of writing or testator’s signature

Question 11

California rules that are different from other statutes

Answer 11

(1) W need not sign in the presence of each other
(2) W do not have to sign in the presence of the testator
(3) no publication requirement (testator declaring that this is his will)
(4) no one needs to sign at the END of the will–signing anywhere is okay

Question 12

“presence”

Answer 12

(1) Slight presence – W see testator sign; or (2) conscious presence – testator signs or acknowledges within the witnesses hearing and the witnesses know what is being done

NOTE: this requirement can be easily overcome by harmless error doctrine

Question 13

Choice of Law

Answer 13

If will disposes of real property, its validity and effect are governed by the law of the state where the property is LOCATED

Personal property – law of the place of the testator’s domicile controls

Question 14

Foreign Wills

Answer 14

Will executed elsewhere is valid in CA if it (1) meets CA’s formalities; (2) meets the law of the state where it was executed; or (3) the law of the place where testator was domiciled at the time of execution or death

Question 15

Holographic Wills

Answer 15

Permitted in CA if the signature and MATERIAL PROVISIONS of the will are in the testator’s own handwriting

Signature may be anywhere in the holographic will

Material provisions: the gifts made and the names of beneficiaries

Still need testamentary intent and capacity (extrinsic evidence admissible)

Question 16

Holographic Wills and Dates

Answer 16

Date not necessary in a holographic will. But lack of date may bring up problems with inconsistent wills and capacity

Inconsistency: if undated holograph is inconsistent with another will, undated holograph is invalid TO THE EXTENT OF THE INCONSISTENCY, unless the time of execution is established to be after the date of execution of the other will

Capacity: if undated and it is established that testator lacked testamentary capacity at any time during which the will MAY have been executed, holographic will is invalid unless established otherwise