Validity of Wills

Question 1

A valid will must satisfy 3 components

Answer 1

1. Capacity
2. Intent
3. Formalities

Question 2

Capacity

Answer 2

A person 18 or over who is of sound mind may make a will (CA PC §6100)

Question 3

Soundness of Mind Test

Answer 3

1. Know the Natural Objects of Decedent’s Bounty
2. Do they know what assets they have that will be in control in the will
3. Does the testator understand that the doc they are signing is their will

Question 4

Insane Delusion Test

Answer 4

Will can be attacked for lack of intent if, at the time of execution T had:

1. A false belief
2. That was the product of a sick mind
3. There is no evidence to support that belief
4. The delusion affected T’s will

Question 5

Elements of Fraud

Answer 5

1. Representation
2. Of material fact
3. Known to be false by the wrongdoer
4. For the purpose of inducing action or inaction
5. In fact induces the action or inaction

Question 6

3 Types of Fraud

Answer 6

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

Question 7

When is a will revoked?

Answer 7

• By express writing
• By physical act (tearing, burning, obliterating)
• By operation of law

Question 8

A will is revoked by operation of law in what circumstances?

Answer 8

• Dissolution of marriage
• Pretermittent heirs
• Doctrine of abatement

Question 9

Doctrine of Incorporation by reference

Answer 9

A document may be incorporated by reference so that it is considered part of a will if: 1. documents are valid 2. and in existence at the time of incorporation

Question 10

Present Testamentary Intent

Answer 10

When the decedent signs the instrument they must intend to make the document presently operative.

Question 11

Formalities for Attested Wills

Answer 11

1. Will must be in writing
2. Must be signed by T
3. T must sign or acknowledge signature in the joint presence of at least 2 witnesses
4. Witnesses must sign during T’s lifetime
5. Witnesses must understand the instrument is the T’s will

Question 12

Codicil

Answer 12

A later testamentary instrument that amends, alters, or modifies the will in some way. Requires the same formalities as the will.

Question 13

To incorporate a document by reference there are 3 requirements

Answer 13

1. Doc must be in existence at the time of execution
2. Doc must be sufficiently described in the will so that its identification is clear
3. There must be satisfactory proof that the proferred doc is the same as described

Question 14

4 Part Undue Influence

Answer 14

• Propensity (loud, influential, pushy)
• Susceptibility (weakened bargaining position)
• Opportunity (must have private time)
• Causation (Influence must have resulted in larger gift)

Question 15

Threshold for probate

Answer 15

$150,000

Question 16

PC 240

Answer 16

Per capita by right of representation-

Question 17

Resulting Trust

Answer 17

An implied-in-fact trust based on presumed intent

Question 18

Lapsed Gifts

Answer 18

If a will bene dies during testator’s lifetime, the gift to him lapses

Question 19

Anti-Lapse Statutes

Answer 19

Nearly all states have anti lapse statutes that operate to save the gift if 1) the bene is in some degree related and 2) left descendents.
(Doesnt apply if contrary provision in will).

Question 20

Anti-Lapse Statutes

Answer 20

Nearly all states have anti lapse statutes that operate to save the gift if 1) the bene is in some degree related and 2) left descendents.
(Doesnt apply if contrary provision in will).

Question 21

Doctrine of Ademption

Answer 21

When specifically bequeathed property in not in T’s estate at death, it fails. (Does not apply to general or demonstrative gifts).

Question 22

Doctrine of Dependent Relative Revocation

Answer 22

A salvage doctrine designed to avoid intestacy. An express revocation that does not physically destroy a will is reversed if that revocation was intended to take effect only if a subsequent will was valid