Validity of Will

Question 1

Requirements of a Valid Will

Answer 1

A valid will must meet the formalities of being in writing, signed and witnessed (2)

Question 2

Witness Requirement

Answer 2

The will requires the signature of two witnesses who:

1. Know the document is a will; and
2. Both are present at the same time to witness the testator’s signing of the will (or acknowledgement of his signature) during the testator’s lifetime. However, it is not necessary for the two witnesses to sign attesting to the fact at the same time.

Question 3

Not properly witnessed

Answer 3

If witness requirements are not satisfied the will can still be treated as properly executed if the proponent of the will establishes by clear and convincing evidence that the testator intended the document to be his will at the time he signed it.

Question 4

Interested witnesses

Answer 4

Witnesses should not be “interested witnesses”.

Question 5

Holographic Will

Answer 5

A will that does not comply with the formalities required for a valid will can qualify as a valid holographic will if the signature and material provisions are all in the testator’s handwriting. A holographic will does not require a date.

Question 6

When is capacity measured for will formation

Answer 6

It is measured at the time of will execution

Question 7

What are the requirements for capacity to create a valid will?

Answer 7

1. “Of legal age (at least 18 years old) and sound mind”

2. Free from duress, menace, fraud and undue influence

Question 8

Mental Capacity to create a valid will

Answer 8

An individual is not mentally competent to make a will if, at the time the will is made, he is unable to:

1. Understand the nature of the testamentary act.
2. Understand the nature and situation of property.
3. Remember and understand his relations with family members that are affected by the will.

Question 9

Mental Disorders that affect creation of a valid will

Answer 9

An individual is not mentally competent to make a will if he suffers from a mental disorder that results in hallucinations or delusions that cause him to devise property in a way that he would not have done but for the disorder.

Question 10

Fraud for Wills & Trusts

Answer 10

Fraud is the misrepresentation, deceit or concealment of a material fact, know to be false by the wrongdoer, with the intent to deprive a person of property or legal rights or cause injury, and does in fact deprive the person.

Question 11

Fraud in the Execution

Answer 11

occurs when a testator is unaware he is signing a will or the will is forged by another, resulting in the entire will being invalid

Question 12

Fraud in the Inducement

Answer 12

occurs when a wrongdoer influences the testator through misrepresentations to include provisions in a will, resulting in only those particular fraudulent provisions being invalid

Question 13

Fraud in preventing revocation

Answer 13

occurs when fraud is implemented to prevent a will revocation; a court will still probate the will and the wrongdoer will take under a constructive trust

Question 14

Undue Influence for Wills & Trusts

Answer 14

is found when the testator executes a will:

a. Leaving an unnatural disposition of his property, and
b. The beneficiaries had opportunity to influence this disposition, and
c. The testator was susceptible to their influence
d. The beneficiaries were active in procuring this disposition.

Question 15

Fraud or Undue Influence is presumed in an instrument making a donative transfer to:

Answer 15

a. The person who drafted it.
b. The person in a fiduciary relationship with the transferor who transcribed the instrument or caused it to be transcribed.
c. A care custodian of the transferor adult during the period services where provided, or within 90 days of provision of services.
d. A cohabitant or employee of above people (a-c)
The presumption can be rebutted by clear and convincing evidence to the contrary.

Question 16

Exceptions to the fraud or undue influence presumption

Answer 16

1. When the beneficiary is a blood relative or cohabitant of the transferor, or
2. When the property transferred is valued at $5,000 or less, or
3. When an independent attorney reviews the instrument and counsels the transferor with the beneficiary being present.

Question 17

Conflict of Laws for Wills

Answer 17

A written will is validly executed if its execution complies with the law of the place where testator is domiciled at the time of execution of the will or domiciled at the time of death or complies with the law of the place the will was executed.

Question 18

Insane Delusion

Answer 18

A will can be attacked if at the time of execution the testator was suffering from an insane delusion. This requires showing:

1. T has a false belief
2. That false belief was the product of a sick mind
3. There is no evidence to support the belief, not even a scintilla of evidence
4. Delusions must have affected testator’s will

Question 19

Elements of Fraud

Answer 19

1. There must be a representation;
2. Of material fact;
3. Known to be false by the wrongdoer;
4. For the purpose of inducing action or inaction; and
5. In fact induces action or inaction desired.

Question 20

Three types of fraud

Answer 20

1. Fraud in execution
2. Fraud in inducement
3. Fraud in preventing testator from revoking the will

Question 21

Fraud in execution

Answer 21

Someone forges T’s signature to will. Entire will is invalid.

Question 22

Fraud in inducement

Answer 22

The wrongdoer’s representation affects the contents of T’s will. Only that part of the will that is affected by the fraud is invalid. Court can:

1. Give property to residuary devisees
2. If no residue, to heirs of law by intestate succession
3. Constructive trust

Question 23

Fraud in preventing testator from revoking

Answer 23

Variation of fraud in inducement.

a. Court will not probate the will and thus the property would go to heirs;
b. Simultaneously, the court will also decree that the heir is constructive trustee who has a duty: to transfer the property to the intended beneficiary as determined by the court.

Question 24

Undue Influence

Answer 24

Testator’s free will is subjugated

Question 25

How can undue influence be established?

Answer 25

1. Prima Facie case
2. Case law presumption
3. Statutory Presumption

Question 26

Prima Facie Case Elements (Undue Influence)

Answer 26

1. Susceptibility- Testator has a weakness such that he is able to have his free will subjugated.
2. Opportunity- the wrongdoer had access to the testator.
3. Active participation - it is the wrongful act that gets the gift.
4. An unnatural result - the wrongdoer is taking a devise, and this person ordinarily would not be expected to take a devise.

Question 27

Case Law Presumption Elements (Undue Influence)

Answer 27

1. Confidential relationship between T and wrongdoer
   a. California recognizes all confidential relationships:
2. attorney-client
3. doctor-patient
4. guardian-ward
5. clery-parishioner
6. trustee-beneficiary
   b. In addition, in CA, a confidential relationship arises whenever one person reposes trust in other.
7. Active participation
8. An unnatural result

Question 28

Consequences of undue influence

Answer 28

1. Only that part of the will affected by the undue influence is invalid.
2. The affected part goes to:
   a. Residuary if any, if none;
   b. Heirs at law by intestate succession; or
   c. Via constructive trust remedy: the tainted part of the will goes to residuary devisees, if any, or if none to the heirs at law;
   d. Court will use one which provides best result.

Question 29

Statutory Presumption of Undue Influence

Answer 29

CA law presumes the provision of an instrument (will, trust, deed) making a donative transfer to the following person is the product of undue influence:

1. Person who drafted the instrument;
2. A person in fiduciary relationship with the transferor (e.g., trustee or attorney) who transcribed the instrument or caused it to be transcribed; or
3. A “care custodian” of a “dependent adult,” but only if the instrument was executed during the period in which the care custodian provided services to the transferor, or w/in 90 days before or after that period; or
4. A spouse, domestic partner or blood relative of (1)-(3)
5. A cohabitant or employee of (1)-(3)
6. A partner, shareholder, or employer of a law firm in which the drafter has an ownership interest.

Question 30

Statutory presumption does not apply when:

Answer 30

1. donative transfer to a person who is the spouse, domestic partner, or cohabitant, or a person related by blood, within the “fourth degree”
2. Instrument is drafted or transcribed by a person who is a spouse, domestic partner, or cohabitant of the transferor, or by a person related by blood, within “fourth degree” to transferor
3. Instrument reviewed by independent attorney, who concludes it is not the product of undue influence.
4. A transfer does not exceed $5,000, if the estate is over $100,000 (i.e., a “small” gift when there is a “big” estate)

Question 31

Consequences of finding undue influence under the statutory presumption:

Answer 31

a. The transferee is deemed to have predeceased the transferor without spouse, domestic partner, or issue. Thus, the gift “lapses” or fails, meaning that the transferee does not take
b. As to the lapses gift, it passes to the residuary, devisee if any, or, if no residue if the lapsed gift is itself residue, to the heirs at law by intestate succession.

Question 32

California Harmless Error Rule

Answer 32

If will fails due to formalities in signing by testator or witnessing of the traditional formalities approach, under California’s “clear and convincing” standard the will can still be admitted into probate if the proponent of the will establishes by “clear and convincing” evidence that at the time the testator signed the will, he or she intended the will to constitute his or her will.

Question 33

Presence

Answer 33

Sight presence: the witnesses see testator sign;
Conscious presence: testator signs and acknowledges within the witnesses hearing and the witnesses know what is being done.

Question 34

Choice of law

Answer 34

The will be admitted into probate in CA if the will complies with the formalities of execution of:

1. California law
2. The law of the place where the will was executed
3. The law of the place of T’s domicile at the time of execution.