THIRD CONCEPT: THE COMPONENTS OF THE WILL (WHAT MAKES UP THE WILL?) Flashcards
Define integration (for wills)
the papers that make up the will
If you have a will written on only one piece of paper, is there an issue of integration?
No
if testator executes a 10-page will is there a question of integration?
Yes
What are the Two elements required for papers to be integrated?
[1] Intent: Testator must have intended for the papers in question to be part of the will; and
[2] Presence: The paper must have been actually or physically present at the time of execution.
Testator goes to lawyer’s office to execute his typed 10-page will. Upon reading it testator states to lawyer that page five does not manifest his intent. Lawyer tells testator to execute the will as it is, and promises tomorrow to have the secretary type a new page five which will be inserted and which
will manifest testator’s intent. This happens. The next day the secretary types new page five and inserts it in the will. Testator dies. What result?
Only pages 1-4 and 6-10 are probated. Old page 5: is not probated, because it was not integrated: T did not intend old page 5 to be part of his will. New page 5: is not probated because it was not integrated because it was not physically present when testator executed his will.
What are the 2 ways of proving integration of a will?
[a] Establish a physical connection among all the pages.
[b] 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.
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. What kind of integration is this an example of?
Establishing a physical connection among all the pages
What is incorporation by reference?
a non-integrated writing is given testamentary effect and becomes part of the will.
Testator’s will states, “I leave my property to the grantee named on the ABC deed.” what is this an example of?
incorporation by reference
Testator’s will states, “I leave my property to the grantee named on the ABC deed.” Problem: From the 4 corners of the will, we do not know who the grantee of the deed is. Can’t we always admit in parol evidence to ascertain his or her identity?
No, because the integrity of the Statute of Wills (California Probate Code) would be undermined. But in this hypo, we actually can admit the deed into probate and, thus, determine who the beneficiary is. How can we do so? We can do so under the doctrine of incorporation by reference. (look at who is listed as owner on the ABC deed)
Elements to incorporation by reference what are the Four Elements?
[1] A document or a writing;
[2] The document or writing must have been in existence when the will was executed;
[3] The document must be clearly identified in the will; and
[4] Testator must have intended to incorporate the document into the will.
(If you establish elements 1-3 four will be implied by the court.)
“I leave my property to the grantee named on the ABC deed” What if ABC deed is an invalid deed?
This is irrelevant. The document does not have to valid for what it purports to stand for. Thus, you can incorporate by reference an invalid deed,
an invalid contract, or even an invalid will of the testator or of a third person.
Facts of Independent Significance, what is the 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.
T’s will states I leave all my property to the church i am a member of at the time of my death. What is the problem with this will?
from the 4 corners of the will we cannot determine the identity of the church.
T’s will states I leave all my property to the church i am a member of at the time of my death.
from the 4 corners of the will we cannot determine the identity of the church. Can we admit parol evidence? Why or why not?
NO we cannot simply parol evidence because we are concerned about the integrity of the Statute of Wills. However, because the fact of what church he belonged to at the time of his death is of independent significance from the will, we can admit as parol evidence that is trustworthy regarding his church status.
Why would joining a church be a independent fact of legal significance?
people do not join a church just to validate a devise in a will; they join a church for reasons independent of the will. Because of these independent reasons for joining a church, there is truthfulness to such fact or act. Therefore, this fact or act is susceptible of independent verification. As such, there is no concern for fraud.
What do facts of independent legal significance allow the court to do?
Facts of independent significance allow courts to fill blanks of T’s will with parol evidence that is trust worthy.
When do you use the doctine of independent fact of legal significance? (what question should you ask?)
Even without the will, would this fact had existed?
“I leave all my property to the people who are in my employ at the time of my death.” Is it a fact of independent significance? Why or why not?
Yes. From the 4 corners of the will we do not know
who these people are. Yet, it is a fact of independent significance Because even without the will, these people would . As such, we can admit this parol evidence
“I leave my car to John” Is this a fact of independent legal significance? why or why not?
Yes, The car is fact of independent significance. At testator’s death, John will take whatever car testator owned because people own cars for many reasons, none of which have anything to do with the law of wills.
“I leave all my property to people I had Thanksgiving dinner with in 1999.” Is this a fact of independent legal significance?
Yes, This is a past fact, independent of testator’s will.
T’s will states “I leave all my property to the people on a note tomorrow.” Is this a fact of independent legal significance? Can it be incorporated? why or why not for each.
No, Independent significance will not work because without the will, this note would not exist. The note is not a fact of independent significance.
No, Incorporation by reference will not work because the note was not in existence at the time the will was executed.
California Probate Code section 6132 allows what?
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.
What are the 4 elements needed under section 6132?
[1] First Element: The writing must be (i) referred to in the will, (ii) dated, and (iii) either signed or handwritten by the testator;
[2] Second Element: The writing must describe the items and recipients (beneficiaries) with reasonable certainty;
[3] Third Element: The writing may be executed before or after the will;
[4] Fourth Element: 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.
udner section 6132 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 what?
if extrinsic evidence establishes the testator’s intent regarding disposition of the items described in the referenced writing;
Testator’s will states: “I give my car to the person
who is identified on a note I executed yesterday.” The writing (i.e. the note), signed and dated by testator, states: “2003 Honda CR-V: Mary Jones.” At the time of testator’s death, the car is not business property and is worth not more than $5,000. What should you discuss on the bar exam? (what theories?)
discuss whether the writing can be admitted into
probate, thus allowing Mary to take the gift. Discuss under 3 theories:
Incorporation by reference
Facts of independent significance
Section 6132
Testator’s will states: “I give my car to the person
who is identified on a note I executed yesterday.” The writing (i.e. the note), signed and dated by testator, states: “2003 Honda CR-V: Mary Jones.” At the time of testator’s death, the car is not business property and is worth not more than $5,000. What is the analysis for Incorporation by reference?
(State the elements of incorporation by reference) [1] A document or a writing; [2] The document or writing must have been in existence when the will was executed; [3] The document must be clearly identified in the will; and [4] Testator must have intended to incorporate the document into the will.
We have a writing, in existence when the will was executed, clearly identified in the will, and intended by testator to be incorporated. Thus, incorporation works.
Testator’s will states: “I give my car to the person
who is identified on a note I executed yesterday.” The writing (i.e. the note), signed and dated by testator, states: “2003 Honda CR-V: Mary Jones.” At the time of testator’s death, the car is not business property and is worth not more than $5,000. What is the analysis for Facts of independent significance?
Who a beneficiary is, or what gift is given, may be given meaning by facts of significance independent from testator’s will.
Apart from the will, the note has no significance. While the car can be a fact of independent significance, the name of the beneficiary
clearly is not. Thus, this is just a variation of, “I leave all my property to the people I will name on a note tomorrow” In short, but for the will, this note would not exist. Thus facts of independent significance will not work.
Testator’s will states: “I give my car to the person
who is identified on a note I executed yesterday.” The writing (i.e. the note), signed and dated by testator, states: “2003 Honda CR-V: Mary Jones.” At the time of testator’s death, the car is not business property and is worth not more than $5,000. What is the analysis for section 6132?
Irrespective of incorporation and independent significance, the writing is referred to in the will; dated, and signed by the testator; describes the property and the recipient with reasonable certainty; and is personal tangible property not used in testator’s business worth not more than $5,000. Thus, section 6132 works.
What is a pour over will?
That means that part or all of testator’s estate is devised to the trustee of the inter-vivos trust, to be administered pursuant to the terms of that trust.
On January 1, testator executes a document creating the ABC Trust, an inter-vivos trust (an inter-vivos trust in this context is a trust created by testator during testator’s lifetime). On January 2, testator executes his will. In the will, testator devises part or all of his estate, “To the trustee of the ABC Trust, to be administered pursuant to the terms of that trust.” Testator dies.
[a] Who is the trustee of this trust?
[b] Who are the beneficiaries?
[c] What are the terms of the trust?
From the four corners of the will, we do not know. And remember, generally speaking, we cannot just admit parol evidence whenever we want to because we are concerned with maintaining the integrity of the Statute of Wills.
On January 1, testator executes a document creating the ABC Trust, an inter-vivos trust (an inter-vivos trust in this context is a trust created by testator during testator’s lifetime). On January 2, testator executes his will. In the will, testator devises part or all of his estate, “To the trustee of the ABC Trust, to be administered pursuant to the terms of that trust.” Testator dies.
How do we get the trust instrument admitted into probate?
[1] Incorporation by reference
[2] Independent Significance
[3] Uniform Testamentary Additions To Trusts Act (UTATA)
On January 1, testator executes a document creating the ABC Trust, an inter-vivos trust (an inter-vivos trust in this context is a trust created by testator during testator’s lifetime). On January 2, testator executes his will. In the will, testator devises part or all of his estate, “To the trustee of the ABC Trust, to be administered pursuant to the terms of that trust.” Testator dies.
How do we get the trust instrument admitted into probate through Incorporation by reference?
we have a trust instrument in writing, in existence when the will was executed, clearly identified in the will, and 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.
On January 1, testator executes a document creating the ABC Trust, an inter-vivos trust (an inter-vivos trust in this context is a trust created by testator during testator’s lifetime). On January 2, testator executes his will. In the will, testator devises part or all of his estate, “To the trustee of the ABC Trust, to be administered pursuant to the terms of that trust.” Testator dies.
How do we get the trust instrument admitted into probate through Independent Significance?
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.
On January 1, testator executes a document creating the ABC Trust, an inter-vivos trust (an inter-vivos trust in this context is a trust created by testator during testator’s lifetime). On January 2, testator executes his will. In the will, testator devises part or all of his estate, “To the trustee of the ABC Trust, to be administered pursuant to the terms of that trust.” Testator dies.
How do we get the trust instrument admitted into probate through 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.
On January 1, testator creates the inter-vivos trust. On January 2 testator executes the will, devising part or all of her estate to “the trustee of the ABC Trust, to be administered pursuant to the terms of the trust.” On January 3, testator modifies the trust. Thereafter, testator dies.
How do we validate the pour-over provision? Will incorporation work? Why or why not?
Incorporation will not work the trust as modified was not in existence when the will was executed
On January 1, testator creates the inter-vivos trust. On January 2 testator executes the will, devising part or all of her estate to “the trustee of the ABC Trust, to be administered pursuant to the terms of the trust.” On January 3, testator modifies the trust. Thereafter, testator dies.
How do we validate the pour-over provision? Will Facts of independent significance work? Why or why not?
Facts of independent significance works. The trust as modified is still a fact of significance independent from the will. Even without the will, there would be this trust.
On January 1, testator creates the inter-vivos trust. On January 2 testator executes the will, devising part or all of her estate to “the trustee of the ABC Trust, to be administered pursuant to the terms of the trust.” On January 3, testator modifies the trust. Thereafter, testator dies.
How do we validate the pour-over provision? Will UTATA work?
UTATA works: Under the act, a pour-over provision is valid even if the trust is subsequently modified. Why? Because the statute says so.
“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.”
