W & T Flashcards
Valid Will Reqs–EMPHASIZE
A valid attested will requires:
1) present testamentary intent (i.e. clear language such as “bequeath” or “devise”–signals T ready to dispose of prop immediately);
2) capacity; and
3) that wills formalities be met.
Will Formalities–EMPHASIZE
Wills formalities require a writing that the testator signed with present testamentary intent in the joint presence of two witnesses, and that both witnesses signed the will and understood the significance of the testator’s act.
CA’s “Substantial Compliance” Approach
Under California’s “substantial compliance” approach–a will that falls short of the required formalities will be treated as compliant if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended that the will constitute the testator’s will.
If there is nothing other than the will itself that could provide C&C evidence regarding T’s intent–then likely NOT sub compliance.
Holographic Will
A holographic will is one:
(1) in which the material provisions are handwritten by the testator and
(2) that is signed by the testator.
A pre-printed will form can be used so long as the material provisions (including property to be distributed and intended beneficiaries) are handwritten.
The document need NOT be dated or witnessed–but it must be clear that the document was intended to be a will.
Testamentary Capacity
To validly execute or revoke a will in CA, the testator must be: (1) at least 18 years old;
(2) and possess a sound mind at the time of execution or revocation.
A testator lacks the requisite mental capacity if she, at the time of execution, lacked sufficient mental capacity to:
(1) understand the nature of the act;
(2) understand and recollect the nature and character of her property, or
(3) remember and understand her relationship to living descendants, spouse, parents, or those affected by her will.
E.g. Mental disorders, insane delusions, deficit in alertness and attention, info processing, thought processes, or ability to modulate mood–if so then rebuttable presumption will executed during period of incapacity.
*Substance abuse alone not enough–i.e. need facts that substance use impaired T’s mind.
Codicil
A codicil is a supplement to a will that alters, amends, or modifies the will as opposed to replacing it. A codicil must be executed with the same formalities as a will–i.e. requires a writing that is signed by the testator with present testamentary intent in the joint presence of two witnesses who understand the significance of the testator’s act; OR holographic codicil signed by T including material terms w/ clear intent it was a codicil.
Revocation
A testator can revoke a will by executing a later will or codicil that partly or completely revokes the prior will. The revocation can be express or implied from inconsistent terms in the subsequent instrument.
Adoption
Adoption treated as a natural relationship for inheritance purposes.
CA Omitted Child Statute–EMPHASIZE
Under CA’s omitted child statute–if a decedent fails to provide for a child born or adopted AFTER the execution of the will, the omitted child receives a share equal to that which the child would have received if the decedent had died intestate.
This statute does not apply if:
(1) it appears on the face of the will that the child was intentionally omitted;
(2) the testator had other children at the time the will was executed and left substantially all of her estate to the other parent of the omitted child; or
(3) the testator provided for the child outside of the will and intended this to be in lieu of a provision in the will.
Per Stirpes
Under per stirpes distribution, the estate is first divided into the total number of the ancestor’s children who survive or leave issue who survive. They then take in equal shares.
Anti-Lapse–EMPHASIZE
Under CA’s anti-lapse statute–a gift does not lapse if it was made to kindred (blood relation) of the testator (or of his current or former spouse or domestic partner) who predeceased the testator but left issue who survived the testator. Instead, the issue takes the gift.
Issue “stands in the shoes” of the predeceased and takes gift under anti-lapse statute.
Take Against the Will
If the will attempts to gift away CP / QCP owned by the surviving spouse–the surviving spouse can (at the cost of rejecting all gifts under the will), “take against the will” and claim all such CP / QCP (i.e., decedent testator spouse can only will away all of his SP and his 1/2 of CP / QCP without surviving spouse consent / acquiescence).
Will Made Outside CA
CA will probate a will that was validly made pursuant to the laws of another jurisdiction where decedent spouse testator was domiciled at the time (even if the will would not be valid under CA law).
Ademption by Extinction
The doctrine of ademption applies only to specific bequests in the event that the subject matter of the specific bequest is missing or destroyed. A specific bequest is a gift of property that can be distinguished with reasonable accuracy from the other property in the testator’s estate. If the subject matter of a specific bequest is missing or destroyed, then the beneficiary takes nothing—not even the sales proceeds received by the testator.
In California, the testator’s intent at the time she disposes of the subject matter of the bequest is a consideration. Courts tend to avoid ademption by a variety of means—e.g., by classifying a specific bequest as general (i.e. gift of PP that testator intends to be satisfied by assets of estate) or demonstrative, by classifying an inter vivos distribution as a mere change in form, etc. If a gift is adeemed, then the beneficiary is entitled only to whatever is left of the specifically devised property or the balance of the purchase price owing from the purchaser of the property.
UDI
3 Elements:
1) A P exerts abnormal influence over T–i.e. very fact driven; e.g just being nice to grandma ok but NOT telling her she must leave you more $ or you will hurt her;
2) Influence so strong it subverts and overpowers T’s mind at time T executes will; and
3) Influence causes T to execute will that reflects wishes of influencer and not that of T.
