Validity of a Will Flashcards
What is required for a valid will?
A valid will requires that the testator has (i) testamentary capacity and (ii) intent.
Testamentary capacity?
T must be 18+ and of sound mind.
T must be able to understand the nature of the testamentary act.
Testamentary intent? (i.e how can it be prevented?)
Intent can be prevented by…
(i) Undue Influence
Physical or mental coercion that controls T’s dispossession of property.
(ii) Fraud in execution
Misrep of document, switching papers
(iii) Fraud in inducement
Misrep of law or facts, induces T in reliance
(iv) Mistake in the execution
Innocent misrep, mistaking true facts. Rest of will is valid unless enforcment would grossly distort T’s intent
(v) Sham will
C&C evidence showing that the doc was not intended to be a will invalidates it.
(vi) Conditional will
If explicit condition precedent to will taking effect does not occur, will is invalid.
Formalities for a valid “formal” will
Formally witnessed will
(i) in writing
(ii) signed by testator
(iii) signing or acknowledgment in joint presence of 2+ witnesses
(iv) signed by 2+ witnesses during testator’s lifetime
(v) witnesses understand instrument being witnessed in T’s will.
Will an “interested” witness invalidate “formal” will
In CA, a will is valid if it signed by an interested witness.
However, unless there are two other disinterested witnesses present, there is a presumption of duress, menace, fraud or undue influence if the will makes a gift to an interested witness.
If the presumption is not rebutted, then the witness may not take more than he would have received had the testator died intestate.
What if the will does not meet the formal witnessing requirements?
A will not meeting witnessing requirements may still be admitted to probate if there is clear and convincing evidence that T intended the document to be his will.
Holographic Will (formalities)
Will (1) signed by T with (2) material provisions in T’s handwriting.
No witnesses needed
Codicil
A codicil is a supplement to a will that modifies it, adds to it, explains it or revokes it.
A codicil must generally be executed in the same manner as the will.
Alteration to an existing will - valid if executed with required formalities as attested / holographic will.
What is “republishing” by a codicil
A codicil is said to republish any will that it refers to. When republication takes place, that republished will is deemed to be executed on the same day as the codicil.
In CA, a codicil can also remedy any issues with the initial will as it can be treated as the will and incorporate by reference the will that was not properly executed.
What if a will is executed outside of CA, is it valid in CA?
Yes - as long as it was valid where it was executed
What is incorporation by reference?
I. In existence at execution
T may incorporate by reference a separate document into a will when
(i) the document is in existence at execution,
(ii) shows the intent to incorporate and
(iii) the writing is described.
II. Document not yet in existence
A will can also refer to a document not yet in existence; if
(i) an unrevoked will refers to the writing
(ii) the writing is dated and in T’s handwriting or signed by T and
(iii) the writing describes the items and the recipients of the property with reasonable certainty.
Facts of independent significance?
A will may dispose of property by reference to acts and events that take place after the execution and w/o formalities that attend to the will itself.
Pour over provision?
T may dispose of property by valid will to an existing inter vivos trust:
(i) the trust must be clearly identified
(ii) the trust may be amended or revoked after execution of the will
(iii) the trust may be unfunded during the testator’s lifetime.
Contractual wills
To make / revoke/ contest wills are recognized in CA, if the existence of the contractual agreement can be proven because it is stated in the will along with contractual provisions
Ambiguity in a will?
CA permits extrinsic evidence if T’s intent or language is ambiguous.
