Execution of Wills Flashcards
Attested will
- heavily tested on bar
- five requirements
i. will must be in writing: oral wills are not recognized in California
ii. will must be signed by one of:
a. the testator (any mark is sufficient)
b. if testator is incapacitated, a 3P in testator’s presence and at testator’s direction
c. by a conservator pursuant to court order
iii. the signing must be done in the joint presence of two witnesses
a. if testator previously signed in front of less than two witnesses, the testator merely needs to acknowledges his signature or will in presence of two witnesses (“this is my signature/will”)
b. presence: can be sight or conscious presence
i) sight: witnesses see testator sign
ii) conscious presence: witnesses know and can hear what is being done
iv. the witnesses might sign the will during the testator’s lifetime
v. the witnesses understand that the instrument they sign is the testator’s will
Attested will - clear and convincing standard
aka “harmless error rule”) for witness requirements
i. applies as long as the will is in writing and signed by testator (or authorized party)
a. i.e. elements (i) and (ii) are satisfied but (iii), (iv), or (v) are not
ii. rule: the will is still allowed into probate if proponent establishes:
a. clear and convincing evidence
b. testator intended the instrument to constitute his or her will
c. when testator signed the will
iii. harmless error rule intended to cure witness execution problems only
a. cures witness defects i.e. elements (iii), (iv), or (v) are not satisfied (in presence of 2 witnesses + in testator’s life + understand they’re signing testator’s will)
b. does no cure defects with elements (i) or (ii) (in writing and signed by testator)
c. probably wouldn’t cure a case where there are no witnesses period
d. also unclear if the harmless error test applies to codicils
Attesting will – california-specific requirements
i. witnesses do not have to sign in the presence of each other or the testator
ii. the testator does not have to expressly declare that “this is my will” to the witnesses, mere awareness is sufficient
iii. the signatures (testator or witnesses) can be anywhere on the will
iv. testator typically has to sign before witnesses, but this varies (and isn’t important bc of the substantial compliance doctrine)
Generally – substantial compliance doctrine
if there is no fraud or mistake, the will is validly executed if there is substantial compliance with the Probate Code, even if not literal compliance
Interested witness problem
- interested witness: witness who is a beneficiary under the will
- does not make will invalid
- but unless there are two other disinterested witnesses, interested witness creates a presumption that the witness-beneficiary secured the gift by wrongdoing
i. no presumption of wrongdoing if there are two other disinterested witnesses
ii. no presumption of wrongdoing if witness-beneficiary is taking only in a fiduciary capacity (ex. as a trustee) - interested witnesses that fails to rebut the presumption of wrongdoing can only take an amount not exceeding their intestacy
Conditional will
- conditional will: a will whose validity is made conditional by its own terms
i. ex. this is my will only if I die in Europe
ii. probated only if the condition is satisfied - can be formal (attested) or holographic
- parol evidence is inadmissible to show that a will was intended to be conditional
i. though parol evidence could be used to show lack of intent to make a will
Holographic wills: formalities of execution
- holographic will: handwritten wills
Holographic wills – requirements
- signed by testator (signature can be anywhere on the will)
- material provisions are in testator’s own handwriting
i. material provisions: gifts being made and beneficiaries (who gets what)
Holographic wills- testamentary intent
- a statement of testamentary intent (“this is my last will”) need not be in handwriting nor on the face of the will
- three cases where extrinsic evidence admissible to assess testamentary intent:
i. lists of names with assets beside them
ii. series of letters (can constitute one will by integration)
iii. commercially printed form will: CA probate code expressly states that this is not a problem
a. note: form wills are an exception to the handwriting requirement
Holographic wills- dates
- a date is not required in a holographic will
i. but lack of a date can be important for inconsistent wills and capacity - rule 1: if an inconsistent undated holograph is inconsistent with the provisions of another will
i. undated will is invalid to the extent of inconsistency
ii. but undated will controls if established it was more recently executed
iii. if two undated holographs, neither is probated to the extent of the inconsistency
iv. note: other will can be a dated holograph, dated witnessed will, or undated witnessed will - rule 2: lack of capacity
i. if it is established that the testator lacked testamentary capacity when the will might have been executed, undated holograph is invalid
ii. undated will can be made valid by establishing testamentary capacity when the will was executed
Holographic wills- changes
- handwritten changes:
i. valid for holographic wills
ii. changes may constitute revocation of an attested - tip: watch out for scenario where changes made to an attested will meet the requirements for a valid holographic codicil
Choice of law
- a will can be admitted into probate in California if it complies with the formalities of execution:
i. of California, or
ii. of the state in which execution took place, or
iii. of the state where testator was domiciled when execution took place - validity and effect of will for real property is governed by law where property is located
- validity and effect of will for personal property is governed by decedent’s domicile
