FIFTH CONCEPT: FORMALITIES OF EXECUTION FOR HOLOGRAPHIC (HANDWRITTEN) WILLS Flashcards
What are the 2 elements of a holographic will?
- A holographic will must be signed by testator
2. The material provisions must be in T’s own handwriting.
Where is the appropriate place for a signature on a holographic will?
The signature can be anywhere in the will.
What is the minimum signature needed?
Signing “Dad” is ok.
What is included in the material provisions?
1) the gifts made, and
2) the beneficiaries’ names.
Is an appointment of an executor a material term?
No. Appointment of an executor: is not material because the court can appoint an administrator.
Is a witness’es signature relevant for a holographic will?
No, If witnesses sign, their signatures are superfluous.
What if testator signs and executes a writing that lists just the names of people and next to each name, an asset that testator owns?
Extrinsic evidence is admissible to determine testator’s testamentary intent. If T told people she has executed her will then the document is a will and is admitted into probate
What if testator signs and executes a writing that lists just the names of people and next to each name, an asset that testator owns? What if testator writes a series of letters?
The series of letters can constitute one will under integration. extrinsic evidence is admissible to ascertain T’s intent.
What if the testamentary intent (“this is my last will and testament”) is part of a commercially printed form will?
The California Probate Code expressly states this is not a problem. “Any statement of testamentary intent contained in a holographic will may be set forth either in the testator’s own handwriting or as part of a commercially printed form will.”
Is a date required in a holographic will?
No.
A lack of a date on a holographic will can create what kind of problems?
[1] Inconsistent wills; and
[2] Capacity.
What if an undated holograph is inconsistent with the provisions of another will (either a dated holographic will, a dated witnessed will, or an undated witnessed will)?
the undated holograph is invalid to the extent of the inconsistency—unless the undated holograph’s time of execution is established to be after the date of execution of the other will.
What if there are two undated holographs?
If you can’t establish which one came last, neither holograph is probated to the extent of the inconsistency.
What if a holograph is undated, and if it is established that the testator lacked testamentary capacity at any time during which the will might have been executed?
the holograph is invalid, unless it is established that it was executed at a time when the testator had testamentary capacity.
