IS THERE A VALID WILL?

Question 1

Testamentary Intent: Look for present unequivocal intent, i.e., does testator intend the instrument to dispose of his property upon death?

Answer 1

a. Look to testator’s intent to create a revocable disposition of his/her property to accrue and take effect upon his/her death and passing no present interest
b. Declarations by the Testator are admissible to demonstrate testamentary intent
c. Reference may be made to the circumstances of the execution of the instrument and the language will be construed in light of their circumstances

Question 2

Wrong will signed: Two Testators mistakenly sign the will prepared for the other testator

Answer 2

Majority view: Mistakenly signed will is not admissible because the testator did not intend the instrument he signed to be his will
1) Modern courts may grant relief through mistake to effectuate testator’s intent

Question 3

Conditional wills: A will may be made expressly conditional upon the happening of an event. If the condition does not happen, the Will will be denied probate

Question 4

TestamentaryCapacity: Infancy: Must be 18 years old to make a will

Answer 4

a. Emancipated minor may qualify but not in Ca.
b. Chronological age not mental capacity age, i.e., 54 year old with mental age of 12 can make a will

Question 5

TestamentaryCapacity: Mental capacity

Answer 5

a. Requirements: Testator must know and understand at the time of the making of the will:

• 1) Nature and extent of his bounty
• 2) The persons who are the natural objects of his bounty
• 3) The nature of the disposition

b. Must be of “sound mind” but not necessarily “sound body”
c. Person adjudged insane is presumed to lack testamentary intent. This
presumption is not conclusive
1) Lack of mental capacity invalidates the will
2) A conservator may make a will for conservatee if the conservator has
court authorization per sec. 2580

Question 6

Insane delusion

Question 7

Undue influence: Influence so great as to destroy the free agency of the testator

Question 8

Kindness and affection will not, by themselves, be regarded as undue influence. Remember, all wills are the product of influence. Issue becomes what is undue influence?

Question 9

Measure influence by:

1) Person who exercises influence (usually beneficiary)
a) Result
b) Haste (things done quickly)
c) Secrecy

Answer 9

1) Person who exercises influence (usually beneficiary)
a) Result
b) Haste (things done quickly)
c) Secrecy

Question 10

Burden of proof is on the challenger to show undue influence

Question 11

The burden shifts and a rebuttable presumption of undue influence is created when the challenger shows:

Question 12

The effect of proven undue influence is that

Question 13

Mistake in the execution:

Answer 13

As a general rule, where there has been a mistake in the execution of a will (testator signed the wrong will) it will fail for lack of testamentary intent.

Question 14

Where testator has made a mistake as to the contents

Answer 14

testamentary intent lacks and the Will will be denied probate, or the provision will be stricken

Try to argue ambiguity rather than mistake

Question 15

Mistake related to the probate of a California statutory will form.

Answer 15

Decedent executed will under mistaken belief as to its content and the statutory will form that was signed was not her intended will.

Question 16

Mistake in the inducement

Answer 16

As a general rule, no relief is granted for a mistake in the inducement unless fraud exists (Key) except

• 1) Relief will be granted only where both the mistake and the actual alternative disposition appear on the face of the instrument
  
  • Beware of omitted heir status
• 2) The court will not rewrite the will, but may strike mistakes (to carry out the testator’s intent)
• 3) Effect: The entire will may be held invalid or the court may sever a provision unless to do so would violate the testator’s intent

Question 17

Ambiguity

Answer 17

No distinction between patent and latent ambiguities, and extrinsic evidence is admissible to determine the meaning of a will or a portion of a will if the meaning is unclear.

Question 18

Legal Formalities: rationale: Ritual/Evidentiary/Protective Nature of the Statute of Wills)

Answer 18

Ritual/Evidentiary/Protective Nature of the Statute of Wills)

Question 19

Legal Formlities: Formal will

Question 20

Provisions located under signature, if added later are

Answer 20

invalid (lack of due execution) but original provisions above signature are arguably valid (severance). Will provisions written under the signature line but before the will is executed are valid since CA deleted the requirement that the will must be signed at the end of the document.

Question 21

Attestation by competent witnesses: Requirements:

Answer 21

The will shall be witnessed by being signed by at least two persons each of whom

• (1) Being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature of the will and
• (2) Understand that the instrument they sign is the testator’s will

Question 22

The signing by the testator or the testator’s acknowledgment of the signature of the will must occur in the joint presence of the witnesses, but Ca.

Answer 22

does not require that the witnesses sign in the presence of each other or in the presence of the testator

Question 23

Qualifications of witness

Answer 23

• Any person generally competent to be a witness may act as a witness to a will
• A will or any provision thereof is not invalid because the will is signed by an interested witness. The fact that the will makes a devise to a subscribing witness creates a rebuttable presumption that the witness procured the devise by duress, menace, fraud, or undue influence.
• If the presumption is rebutted, the person (interested witness) takes the gift under the will.
• This is a presumption affecting the burden of proof. If presumption cannot be overcome, the witness will receive only that share received by intestate or under the will, whichever is less