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.