Terms of wills

Question 1

Components of the will - integration

Answer 1

1. heavily tested on bar
2. presence + intent
3. integration: which papers make up the will (all papers integrated into one doc)
   i. a paper must be integrated for it to be probated
   ii. no issue if a will is only on one page
4. papers need intent and presence to be integrated, and thus to be probated
   i. intent: testator intended for the papers to be part of the will
   ii. presence: the papers were actually and physically present at the time of execution
5. modifications after execution defeat presence requirement, and thus provision or will is not integrated if modified
6. ex. if testator says during execution that page 5 doesn’t manifest her intent, and lawyer says he’ll replace it tomorrow, then new page 5 is not integrated (was not present)
7. intent can be inferred
   i. can infer that papers stapled together are intended to be part of a will
   ii. inferred by a logical connection (ex. sentence continues onto next page)

Question 2

Components of the will - Incorporation By Reference

Answer 2

1. heavily tested on bar
2. incorporation by reference: clearly identified + existing document + intent
   i. document or writing
   ii. in existence when the will was executed (modification after execution destroys this)
   iii. sufficiently described such that it is clearly identified in the will
   iv. intended by testator to be incorporated into the will (satisfactory proof if other elements established)
   v. and the document is proven to be the one document described in the will
3. the non-integrated writing is given testamentary effect and becomes part of the will
4. NB: the document to be incorporated need not be valid for what it purports to stand for
   i. can incorporate by reference an invalid deed, contract, or will of the testator or a 3P
   ii. a holograph can incorporate a typed document
   a. a holographic codicil can incorporate a defectively executed non-holographic will
   iii. note: a properly executed codicil incorporates by reference a prior defective will, making it valid
5. exception to the rule that parol evidence is generally not admissible to ascertain a will (it would undermine the integrity of the California Probate Code)

Question 3

Components of the will - Writing Disposing of Limited Tangible Personal Property (CPC §6132)

Answer 3

6. in CA, there is an exception to the existence requirement for incorporation by reference for writings disposing of tangible personal property
   i. the writing may be executed or modified at any time
7. a writing can be given testamentary effect if:
   i. value of the property is < $5000 per item and < $25,000 total at time of testators death
   ii. the writing describes the items and recipients with reasonable certainty (ex. list)
   iii. the writing is referred to in the will
   iv. the writing is dated, and either (i) signed or (ii) handwritten by the testator
   a. if not signed, extrinsic evidence can establishes testator’s intent wrt the disposition
8. items not meeting the requirements (ex. value over $5000) pass to residuary clause, or if none, to intestate, and those items do not count towards the $25k aggregate cap
9. if a designated recipient dies before the testator, the property passes as directed in the writing, but if no directions in the writing then the disposition lapses (lapsed gift)
10. testator can make subsequent changes if handwritten or in signed writing, and the last writing controls if there are inconsistencies

Question 4

Components of the will - Facts of Independent Significance

Answer 4

1. heavily tested on bar
2. who a beneficiary is, or what gift is given, can be established by facts of significance independent from testator’s will
3. must be a fact of independent significance
   i. must be a fact
   ii. significance of the fact must be independent of the will
   a. test: whether the facts would exist buts for the will
4. independently significant facts:
   i. any fact about testator’s life unrelated to the will
   ii. can be a future or past fact or act
5. idea: allows parol evidence that is trustworthy
   i. the fact is trustworthy because it is significant for some reason other than to validate a devise in the will
6. ex1. can be used to identify which church if will says “all my property to the church that I am a member of at time of my death”
   i. the identify of the church is a fact of independent significance bc people do not just join churches to validate a devise on a will
7. ex2. cannot be used for “all my property to the people in a list I will write tomorrow”

Question 5

Components of the will - Pour-Over Wills

Answer 5

8. pour-over will: a will in which a testator’s estate is devised to the trustee of an inter-vivos trust, to be administered pursuant to the terms of that trust
   i. devising an estate to an inter-vivos trust
   ii. testator creates an inter-vivos trust, and testator devises all or part of estate to the inter-vivos trust’s trustee, to be administered pursuant to the terms of that trust
9. three theories for valid the pour-over provision (admitting the trust instrument into probate):
   i. incorporation by reference (existing instrument + clearly identified + intent to incorporate)
   ii. independent significance: the trust instrument is an independently significant fact
   iii. by statute: UTATA (Uniform Testamentary Additions to Trusts Act) if
   a. valid written trust instrument
   b. existence: executed before or at the time will was executed

Question 6

Components of the will - Non-Probate Assets

Answer 6

1. non-probate assets (life insurance, etc.) cannot be passed by will, and only pass by their particular arrangement