THE COMPONENTS OF THE WILL Flashcards
Integration
Integration refers to which paper make up the Will
Two elements required for papers to be integrated:
- Intent: Testator must have intended for the papers in question to be part of the will; and
- Presence: The paper must have been actually or physically present at the time of execution.
Proving integration: 2 different ways:
- Establish a physical connection among all the pages: If the papers are stapled together, it is inferred that testator intended the papers to be part of the will and were physically present at the time of execution.
- Establish a logical connection: Does the last word on page 1 make sense in relation to the first word on page 2? If so, integration is inferred.
Incorporation by Reference
The theory of incorporation by reference is that a non-integrated writing is given testamentary effect and becomes part of the will. As such, it is now admitted into probate.
The document does not have to be valid for what it purports to stand for.
Elements to incorporation by reference: Four Elements:
- A document or a writing;
- The document or writing must have been in existence when the will was executed;
- The document must be clearly identified in the will; and
- Testator must have intended to incorporate the document into the will.
If you establish elements 1-3, 4 will be implied by the court
Facts of Independent Significance
Theory and definition of doctrine:
Who a beneficiary is, or what gift is given, may be given
meaning by facts of significance independent from testator’s will.
Facts of independent significance allows us to fill in the blanks to Ts Will with parole evidence that is trustworthy
Writing Disposing of Limited Tangible Personal Property
Under California Probate Code section 6132, a writing, whether or not it can be incorporated by reference or is a fact of independent significance, may be admitted into probate and, thus, given testamentary effect.
4 elements needed under section 6132:
- The writing must be
- referred to in the will
- dated, and
- either signed or handwritten by the testator (but even if the writing is not dated or neither handwritten nor signed by the testator, the writing can still be admitted into probate and given testamentary effect if extrinsic evidence
establishes the testator’s intent regarding disposition of the items described in the referenced writing);
- The writing must describe the items and recipients (beneficiaries) with reasonable certainty;
- The writing may be executed before or after the
will; - The writing directs the disposition of tangible
personal property (excluding cash and property used primarily in a trade or business) valued, at the time of testator’s death, at not more than $5,000 per item and not more than $25,000 in the aggregate.
Pour-Over Wills
Will designates a portion to go to the trust to be administered under that
How, then, do we validate the pour-over provision? (That is, how do we get the trust instrument admitted into probate?) There are three ways.
- Incorporation by reference
- Independent Significance
- Uniform Testamentary Additions To Trusts Act (UTATA)
Incorporation by reference
- we have a trust instrument - a writing
- in existence when the Will was executed
- it is clearly identified in the Will
- T intended to incorporate the trust instrument into the Will
- Thus, the trust instrument will be admitted into probate and the pour-over provision will be validated.
Independent Significance for Pour Over Wills
- Even without the will, we would still have this intervivos trust.
- The trust instrument, therefore, is a fact of significance independent from the will.
- Thus, the pour-over provision can be validated on this theory, too.
Uniform Testamentary Additions To Trusts Act (UTATA)
- So long as you have a valid trust, which was in existence before the will was executed, or at the time of execution, the pour-over provision is valid by statute.
- The pour-over provision is valid simply because the
statute says it is valid.
