Pg 10

Question 1

What is the general rule with regard to when witnesses have to be present to see a testator sign a will?

Answer 1

They must be present at the same time to see the testator sign or acknowledge his will

Question 2

What does it mean if a testator acknowledges to a witness that this is his signature on a will?

Answer 2

The testator signs his will before the witnesses come, so he says something like, “This is my signature on my will.“

Question 3

What is counted as “presence“ with regard to attesting witnesses seeing the testator sign his will?

Answer 3

Various courts require different things:
– some courts: require CONSCIOUS PRESENCE. The witness must verify it with his own senses, but if the testator goes into an empty room and closes the door, then comes out with the will in his hand and his signature on it, even though the witness didn’t see the testator sign it, he can confirm with his own senses that the testator must’ve signed it. This only requires that you sense the presence of another - you don’t have to see the actual person sign it.
– other courts: require LINE OF SIGHT, so the witness must see the document getting signed without visual obstruction.

Question 4

Is it necessary that a witness understands that the document he is attesting to is the will of the testator?

Answer 4

Yes, but he doesn’t have to know what the contents of the will is

Question 5

If a person lives in another state and executes a valid will there, then moves to California and dies in California, but his will doesn’t meet California formalities, what happens?

Answer 5

That is OK because in California wills that doesn’t mean California formalities are still admitted to probate if they met the formalities of the state of execution at the time that they were executed.

Question 6

What is involved in the substantial compliance rule for will validity?

Answer 6

If a will fails to comply with minor technical formalities, strict compliance is not necessary as long as the testator substantially complies with formalities and there is clear and convincing evidence that he intended the document to be his will. It just has to come close to meeting all the formalities.

Question 7

If a testator makes a will, signs it in front of a witness, and then the witness signs the will, and then that witness leaves and the testator acknowledges his signature to a different witness and then he signs the will, is that OK?

Answer 7

Generally no, because witnesses are supposed to both be there at the same time to witness the testator sign or acknowledge the document, but under the substantial compliance rule, both witnesses were present at the same time but the testator intended to and believed that he complied with formality requirements, so that gives clear and convincing evidence that he intended it to be his will. Just remember that the substantial compliance rule is a minority position that has not been adopted in all states.

Question 8

Does California have the substantial compliance rule with regard to will formalities?

Answer 8

Yes, but it only applies to attestation errors. It does not excuse defects in writing or signature.

Question 9

Is it a good idea to talk about substantial compliance on an essay?

Answer 9

Yes, you should always discuss this and harmless error if there is any argument that there are any defects regarding formalities

Question 10

What is the harmless error doctrine?

Answer 10

Failing to comply with one or more requirements of will formalities is harmless, so it’s disregarded as long as there is clear and convincing evidence that the testator intended a document to be his will. If the document doesn’t fully meet formalities, the court will still treat it like it did as long as the document is in writing

Question 11

What is a holographic will?

Answer 11

This is a handwritten will that doesn’t comply with regular formalities, but is still valid whether it is witnessed or not, as long as there is a signature and the material provisions of the will are in the handwriting of the testator. He must state who gets what.

Question 12

What is the rationale behind a holographic will?

Answer 12

Some testators need to handwrite their wills and they cannot get witnesses because they are old or dying or bedridden or don’t have a laptop or don’t have any friends, plus the handwriting is a good hedge against forgery. This is just an alternative for formal attested wills.

Question 13

If there is handwriting on a paper that already has typed or commercially printed content on it, can that still be a holographic will?

Answer 13

Yes, but you only look at the handwriting and you ignore all of the typewritten stuff. If the material provisions are in handwriting, then it’s OK. There also has to be some language of testamentary intent to indicate that it is a will.

Question 14

If a testator buys a pre-printed form will and he fills in the blanks like his name and the people who get his things, and then he dates and signs it, but he doesn’t get witnesses, in California will that count as a holographic will?

Answer 14

Yes the attestation can be excused if there is clear and convincing evidence of intent.

Question 15

What is the language of testamentary intent?

Answer 15

Saying, “I devise“ or “I leave“

Question 16

Is it necessary that a will has a date on it?

Answer 16

No, but if there are two or more wills, there needs to be some evidence for the order of the wills

Question 17

What does California say with regard to testamentary intent on a paper that is commercially printed but also has some handwriting of the testator?

Answer 17

Any statement of testamentary intent in a holographic will can be set forth in the testator’s own handwriting or as part of a commercially printed form will. There’s no need for witnesses, but you do need the material provisions in the testator‘s hand writing

Question 18

Where must a signature appear on a will?

Answer 18

It can be anywhere on the will, but if it is not signed at the end, there may be doubt about whether the testator intended it to be a signature

Question 19

Does every state allow holographic wills?

Answer 19

No, only about half of the states do, but California does. If the facts don’t say which jurisdiction it is in, say, “if this is a jurisdiction that recognizes holographic wills, then…, and if not, then….“

Question 20

What is involved in a revocation of a will?

Answer 20

This is an action taken by the testator of a valid will where he says he doesn’t want it anymore and that under is a valid execution of the well.

Question 21

When can a testator revoke his will?

Answer 21

Anytime until the moment of his death

Question 22

What is the document that a revocation of a will must happen on?

Answer 22

The original or a duplicative original. It cannot be on a photocopy or a different document

Question 23

How do you revoke a will in California?

Answer 23

This can be done by:

• a subsequent will revoking the first will expressly or by inconsistency
• by burning, tearing, obliterating, or destroying the first will with the intent to revoke it by either the testator or someone in his presence and at his direction

Question 24

What are the two major ways to revoke a will?

Answer 24

• by a subsequent writing

– by a physical act

Question 25

How do you revoke a will by a subsequent writing?

Answer 25

Through a codicil that amends an earlier will by modifying it but not completely displacing it.

Question 26

Is it possible for there to be a formal will and then a holographic codicil or vice versa?

Answer 26

Yes, no problem

Question 27

Does a codicil have to refer to the first will that it is modifying in order for it to be valid?

Answer 27

No

Question 28

If a second writing completely displaces a first will, is that a codicil?

Answer 28

No, it just revokes the first will completely

Question 29

What is required for a subsequent writing to revoke an original will?

Answer 29

The writing must abide by will formalities meaning it must be signed, written, and witnessed.

Question 30

What are the only two things that have the power to revoke an earlier will?

Answer 30

A will or codicil

Question 31

How do you revoke a will expressly?

Answer 31

If you have a second writing after an original will that says, “I revoke all prior wills and instead I leave…….“ This second will is not a codicil because it completely revoked the first one.

Question 32

How do you revoke a will by inconsistency?

Answer 32

If the second writing makes different devises but it does not say that the first is revoked, then it would supersede and wipe out the first will

Question 33

If a first will says, “Estate to A.” Then the testator types and signs a second document that says, “I revoke the first will in its entirety.” Is that OK to revoke the first will?

Answer 33

No, it is not effective because it doesn’t meet will formalities (it was not holographic, it was not signed by two witnesses).

Question 34

If a testator calls an attorney and tells his attorney to tear up his will, and the attorney does it, is that effective as a revocation?

Answer 34

No because it didn’t happen in the testator‘s presents

Question 35

If you tear up your own will and then you change your mind and you tape it back together, what has happened?

Answer 35

The will was revoked and taping it back together didn’t make a new will

Question 36

How can you revoke by a physical act?

Answer 36

You can revoke a will or part of a will by burning it, tearing, canceling, obliterating, or destroying the will with the intent and purpose to revoke it. This can happen by either the testator or someone else in his presence and by his direction

Question 37

What are the required elements to revoke a will by physical act?

Answer 37

– appropriate physical act that constitutes the destruction of a will
– an intent to revoke the will
– the act had to have been done by the appropriate party: either the testator or someone in his presence and at his direction

Question 38

Is it possible to revoke your will by just thinking that it’s not your will anymore, or making an oral declaration, or spitting on it, or crumbling it and putting it in the garbage, hiding it, telling someone to destroy it at their own house, accidentally shredding it, etc.?

Answer 38

No

Question 39

What are some examples of things that would work to revoke a will by a physical act?

Answer 39

Shredding, dissolving in acid, writing “void“ across the page (as long as the marks and words touch a substantial portion of the words of the will), etc.

Question 40

If you just write “void“ in the margin of a will, is that enough to revoke it?

Answer 40

No, the words have to touch a substantial portion of the words of the will