Reqs and Components

Question 1

Execution of Wills Requirements?

Answer 1

(1) Testator with capacity;
(2) Present testamentary intent; and
(3) Valid compliance with applicable formalities

Question 2

What are the requirements of capacity?

Answer 2

Reqs of capacity
• age = 18 years
• know nature and extent of property
• natural objects of bounty: spouse/domestic partner; issue; parents; and others whose interests affected by will
• nature of the testamentary act - the testator must know that he/she is executing a will; knowledge of legal technicalities not required

Defects in capacity
• insane delusion
• fraud
• undue influence

Effects of no capacity = entire will invalid

Question 3

What is the effect of no capacity?

Answer 3

Entire will invalid

Question 4

What are the will formalities?

Answer 4

(1) writing required

(2) signed by - signature are intent dispositive and can be anywhere on the document
(a) testator
(b) by another
- in testator’s presence; and
- at testator’s direction
(c) conservator

(3) simultaneous presence of 2 witnesses
(4) signed by witnesses within testator’s lifetime; and
(5) witnesses understand the significance of the testator’s act

Question 5

What are the components of the will?

Answer 5

(1) Integration
(2) Incorporation by reference
(3) Acts of independent significance
(4) CA Probate Code § 6132
(5) Codicil
(6) Pour Over Will

Question 6

What is integration?

Answer 6

= process of bringing together all separate papers into a single will

Elements
(1) intent by testator
- physical connection of papers (i.e. stapled together); or
- logical connection - natural flow of the ¶s and sentences from page to page;
AND
(2) paper actually present at time of execution

Question 7

What is incorporation by reference?

Answer 7

• document/other writing
• documents in existence at time of execution
• documents clearly identifiable in the will; and
• intent by testator
  • presumed by court if other elements satisfied

Question 8

What are acts of independent significance?

Answer 8

• non-testamentary in nature - to be valid, the act must be something which ordinarily has some non-testamentary purpose
• past/future act
• test = does the act/document have sufficient significance apart from its effect on the will?

–> effect of yes = if beneficiary/property designations are identified by acts having independent motive/significant apart from the will, they will be upheld since the parole evidence is trustworth

Question 9

CA Probate Code § 6132

Answer 9

Incorporation by reference & acts of independent significance

SCOPE:

• decedents dying on/after 1/1/2007
• determines whether writing will be admitted by: incorporation by reference; or acts of independent legal significance

ELEMENTS

(1) writing must be
- referred to in unrevoked will
- dated
- signed/handwritten by testator

(2) writing must describe items and beneficiaries w/ reasonable certainty;

(3) writing disposes of tangible personal property
- no cash
- no trade or business property
- limitation on value at testator’s death: $5k per item; AND $25k in aggregate

Last in time prevails

Question 10

Codicil

Answer 10

Testamentary instruments that modifies, amends, or revokes pre-existing will

Holographic codicil

• all material provisions in testator’s handwriting; and
• signed by testator

Effect of codicil = republication of will

• pour over wills
• pretermission

Effect of Revocation
• revokes codicil = rebuttable presumption only codicil revoked
• revokes will = rebuttable presumption both codicil and will revoked

Question 11

What is a holographic codicil?

Answer 11

Holographic codicil

• all material provisions in testator’s handwriting; and
• signed by testator

Question 12

What is the effect of codicil?

Answer 12

Republication of will

• pour over wills
• pretermission

Question 13

What is the effect of revocation of codicil

Answer 13

• revokes codicil = rebuttable presumption only codicil revoked
• revokes will = rebuttable presumption both codicil and will revoked

Question 14

What is a Pour Over Will?

Answer 14

definition = provision in settlor’s will devisees part/all of estate to the trustee of an inter vivos trust created during settlor’s lifetime

Validated by

(1) incorporation by reference
- trust instrument in writing
- trust instrument in existence at time of will execution
- trust instrument clearly identifiable
- intent by testator
(2) acts of independent significance
(3) UTATA (Uniform Testamentary Additions to Trusts Act)
(4) CA Probate Code § 6132

Question 15

What are Conditional Wills?

Answer 15

Wills that only go into effect when a certain act/condition happens

Court will only probate if condition has been satisfied

Form

• formal wills; or
• holographic wills

Question 16

Execution of Holographic Wills

Answer 16

Formalities

(1) writing required
(2) material terms handwritten by testator
(3) signed by testator

Testamentary Intent

• extrinsic evidence admissible
• commercially printed form

Date not required - but watch out for inconsistent testamentary instruments or capacity issues