VALIDITY OF WILLS

Question 1

Execution of Wills Checklist

Answer 1

• Attested Will
  
  • Interested Witnesses
• Substantial Compliance
• Holographic Will
  
  • Lack of Date
• Codicil
• Choice of Law

Question 2

Challenges to Validity Checklist

Answer 2

• Capacity
• Insane Delusion
• Undue Influence
  
  • Confidential Relationship
  • Susceptibility Test
• Fraud
  
  • Fraud in the Inducement
  • Fraud in the Execution

Question 3

Attested Will

Answer 3

A valid attested will must be

(1) in a writing,
(2) signed by the testator or by another person at the testers direction and in his presence,
(3) two witnesses must be present for the testator’s signing at the same time,
(4) the witnesses are required to sign the will during the testator’s lifetime, and
(5) the witnesses must know that the document is a will.

Question 4

Interested Witnesses

Answer 4

If interested witness, 2 disinterested witnesses must be present

Question 5

Substantial Compliance

Answer 5

• Substantial compliance not required
• May still be valid if proponent can show, through clear and convincing evidence, testator intended document to be a will

Question 6

Holographic Will

Answer 6

A holographic will is valid if:

1. it is signed by the testator
2. demonstrates apparent testamentary intent, and
3. the material provisions are handwritten by the testator

Question 7

Holographic Will - Lack of Date

Answer 7

A holographic will is not invalidated for lack of date unless

(i) the testator’s capacity is contested or (ii) a second will exists creating a rebuttable presumption that the undated holographic will precedes the other.

If the proponent of th will cannot rebut, any inconsistency provisions in the undated holographic will are invalidated

Question 8

Codicil

Answer 8

A codicil is a will supplement that can amend a will but cannot replace it.

To be valid, it must satisfy the formalities of a will and can be attested or holographic.

A valid codicil republishes a will as to the date of the codicil and can be used to cure problems that existed at the execution of the original will.

Question 9

Choice of Law

Answer 9

A will is valid if it complies with

(i) California’s required formalities
(ii) the formalities of the testator’s domicile at the time of execution or death, or
(iii) the formalities of the state in which the will was executed

Question 10

Capacity

Answer 10

A valid will requires a testator of legal age to have adequate mental capacity, meaning she must understand

(i) the nature of her act
(ii) nature and scope of her property, and
(iii) natural objects of her bounty

Question 11

Insane Delusion

Answer 11

A will may be invalidated if it is the product of an insane delusion. A testator suffers from an insane delusion when she has an irrational belief not supported by facts.

Question 12

Undue Influence

Answer 12

Undue influence occurs when an individual coerces or excessively influences the testator such that the testator lacks free will. Courts consider the following factors:

(i) testator’s vulnerability
(ii) influencer’s apparent authority
(iii) influencer’s actions and tactics, and
(iv) equity of the result.

There are two approaches which helps determine whether undue influence existed: (I) the confidential relationship or (ii) the susceptibility test.

A will can be invalidated, fully or partially, upon a showing of undue influence.

Question 13

Undue Influence - Confidential Relationship

Answer 13

Under confidential relationship, a presumption of influence arises when

(1) there is a confidential relationship between the testator and the principal beneficiary,
(2) the beneficiary is active in procuring the will, and
(3) the devise to the beneficiary is unnatural

Question 14

Undue Influence - Susceptibility Test

Answer 14

Under the susceptibility test, the contestant must show that

(1) the testator was susceptible,
(2) influencer had motive to influence,
(3) the influencer had the opportunity to exert influence, and
(4) the testator affected the unnatural outcome of the will

Question 15

Fraud - Fraud in the Inducement

Answer 15

Fraud in the Inducement occurs when a person make an intentional misrepresentation which causes the testator to procure a will that she would not have otherwise procured

Question 16

Fraud - Fraud in the Execution

Answer 16

Fraud in the execution occurs when a misrepresentation is made regarding the type of document or its contents, which causes the testator to unknowingly create a will or make a devise.