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Wills and Trusts > Week 6 > Flashcards

Week 6 Flashcards

1
Q

What about CA wills and curing defects?

A

CA does not cure defects; strict compliance

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2
Q

What is an attested will?

A

A will that requires others to have witnessed the signing

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3
Q

What is a holographic will?

Does it need to witnessed

A

Written entirely in the hand of the testator

No

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4
Q

What are the two kinds of wills in CA?

A

attested wills and holographic wills

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5
Q

What if the signature on an attested will is just a shaky line?

Why?

A

That’s fine

“signed” under 6110(c)(1)

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6
Q

What if the signature says, “Mom” or “Dad,” i.e., initials or nicknames?

A

That’s fine

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7
Q

What is Taylor v. Holt about?

Facts?

Issue?

Holding?

Rationale?

Would this work in CA?

A

Signing in attested wills

A print out signature in a signature-looking font

Is this a signing?

No

Because no evidence to show testator’s intent to adopt by that mark

No; wouldn’t work in CA either

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8
Q

What is the subscription requirement?

Does CA have it?

A

If anything follows the signature, it is irrelevant

No; can sign anywhere in CA

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9
Q

When does a will become a legal document?

A

When the testator dies

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10
Q

What is included in a “writing”? (2)

A

a printing or a typing

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11
Q

Where is the gray area of “writing” and wills?

A

software files; non-physical, electronic form; not similar enough to handwriting, printing and typing

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12
Q

What is an interested witness?

What happens to such a will in common law? Why?

A

Someone who is a beneficiary of the a will and a witness

Will was thrown out, because witnessing is bad

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13
Q

What is a purging statute?

A

when there is an interested witness, CA probates the will, but just suspends the gift they were to get

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14
Q

What is the interested witnesses statute?

A

6112

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15
Q

Under 6112, what must an interested witness prove to not be purged?

A

absence of duress, menace, fraud, undue influence; there is a presumption of those things otherwise

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16
Q

In CA, how much does a purged interested witness get? (2)

A

give them what they would have gotten in a prior will, or if no prior will, then what they would have gotten intestate

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17
Q

What is Estate of Morea about?

Facts?

Issue?

Holding?

Rationale?

Take-away?

A

Interested witnesses

there were more witnesses than needed, but 1/3 witnesses are interested, so no problem since only two needed the other two include a son who is getting a gift, but is getting less than he would intestate, so he’s not technically “interested”

Were there two disinterested witnesses?

Yes

One total disinterested; another takes but gets less than he would intestate; third is interested, but would just be purged if needed

Can take and still be disintenterested if get less than you would intestate

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18
Q

Will execution problems be on the final?

A

Yes

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19
Q

What is In re Pavlinko’s Estate about?

Facts?

Issue?

Holding?

Rationale?

Is this the rule in CA?

A

Signing

Two mirror image wills of husband and wife; they didn’t speak English; will was in English; they each signed the other’s will; wife dies first (no probate because it’s PA), and husband dies later

Is a will valid if it is signed by a person other than the indivudal that is referenced to in the will as being the creator of the will?

No

The Wills Act specifically requires that a will be in writing and signed by the testator.

Yes; strict compliance

20
Q

What’s the remedy of In re Pavlinko’s Estate? (2)

Does constructive trust work here? Why or why not?

A
  1. Malpractice liability, even though it probably won’t get you enough money in large estates;
  2. if no lawyer though, nothing to do

No, because there is no unjust enrichment; recipient of intestate estate can’t be unjustly enriched because of some legal accident

21
Q

What is In re Snide about?

Facts?

Holding/Rationale?

What kind of approach is this?

A

Signing

Same thing as in Pavlinko

Because the two wills were identical and had the same witnesses, there is no risk of fraud or undue influence. The testator’s intent is present along with his awareness of the seriousness of the event. Therefore the will should be admitted to probate.

ad hoc approach

22
Q

When is there substantial compliance?

A

The court may deem a defectively executed will as being in accord with statutory formalities if there is clear and convincing evidence that the purposes of those formalities were served.

23
Q

What is the harmless error rule?

A

The court may excuse noncompliance if there is clear and convincing evidence that the decedent intended the document to be his will.

24
Q

Why does CA go with strict compliance if others have more relaxed standards?

Example?

A

Because CA is already relaxed about things

(c)(2): harmless error about witnesses

25
Q

What is “In re Will of Ranney” about?

Facts?

Issue?

Holding?

Rationale?

Rule?

How is different from Pavlinko and Snide?

A

Substantial compliance/harmless error

Two people intending to serve as witnesses to a will signed a sworn affidavit stating they had previously signed their names as witnesses on a will. The attorneys facilitating the will execution ceremony believed the affidavit was sufficient to meet the statutory requirements. The Appellate Court held that the affidavit literally satisfied statutory requirements even though the will did not have an attestation clause.

Substantial compliance: A statute that allows a signed affidavit by attesting witnessed to be submitted along with the will requires that the witnesses have first signed the actual will. If a will is not formally executed in compliance with statutory requirements, then that will may still be admitted to probate if its substantially complies with those requirements. Because there is no stated policy in either of those, unlike in NJ (this case)

26
Q

What is In re Estate of Hall about?

Rule?

A

Original will drafted and executed. 13 years later, joint will is drafted for husband and wife. Attorney said its OK to execute the draft; they sign it and attorney notarizes it without witnesses. Joint will revoked prior will.

Harmless error rule: A document that is not properly witnessed by two people who see the testator sign the will and also sign themselves may be probated if the proponent of the document establishes by clear and convincing evidence that the decedent intended that document to be his will.

27
Q

Which is more liberal: harmless error or substantial compliance?

Why?

A

harmless error, because you can botch something; not even attempt something, whereas substantial seems to require a failed attempt

28
Q

What is the CA holographic will statute?

A

6111

29
Q

What is the basic rule about holographic wills in CA? (2)

What about part-form wills?

A

If these two, then OK:

  1. Signature is in handwriting of testator
  2. Material provisions are in the handwriting of the testator

Testamentary provisions need not be in handwriting of testator

30
Q

What are the types of material provisions of a will? (2)

Describe each.

A
  1. Testamentary provision - this document is intended to be used to dispose of my property; this is my will
  2. Dispositive provision - provisions that give things to people (dispose of property)
31
Q

What is Kimmel’s Estate about?

Facts?

Issue?

Holding?

Rationale?

Rule?

A

Holographic wills

Harry A. Kimmel wrote a letter to his sons discussing the affairs of his life and disposing of a certain amount of property in the case that a particular event occurred. Kimmel died the same day that he wrote the letter. Kimmel’s heirs at law appeal a decision by the register of wills court admitting the letter to probate.

Valid will?

Yes

Had finality of intetion to transfer

A document that is a formal will is testamentary in character and may be admitted to probate if the attenuating circumstances before and at the time of the testator’s death, along with the wording of the will, express the intent to make a gift of property at death. Need finality of intention to transfer.

32
Q

What is “Estate of Gonzalez” about?

Facts?

Issue?

Holding?

Rationale?

What is a good argument against holding?

Rebuttal?

A

Holographic wills

Gonzalez wanted to prepare a will before a trip to Florida, and filled in the blanks of a pre-printed will form. Gonzalez indicated he planned to leave an equal share to three of his five children. Gonzalez showed his brother and sister in law the completed form. No one signed the form as a witness. Gonzalez’ sister in law witnessed him sign the completed form, as well as a blank form he intended to use at a later date to make the will more neat. Three witnesses signed the blank form. Gonzalez dies prior to completing the second form. The three heirs sought to enforce the will over the objecting of the two disinherited children. The probate court found a valid will and the appellate court affirmed.

Valid holographic will?

Yes

Preprinted parts of the will, not in his handwriting, come in as evidence of testamentary intent.

Didn’t intend this document to be his will, shown by signed blank form and cross-outs. Died before he could finish editing the will.

Signed twice.

33
Q

Is there a CA requirement that there be a testamentary provision in holographic wills?

A

No, not needed

34
Q

What is a testamentary provision?

A

This is my last will and testament; look out for frauds, etc.

35
Q

Why are we not worried about the fact that in Kimmel, the testator did not think he was writing the will?

A

Has an explicit direction from the writer that says lock it up, it may help you out

36
Q

What is the relevant inquiry about whether something is a will or not?

What evidence?

A

at the time, did the testator want it to be the document admitted to probate; finality of intention to transfer

extrinsic evidence is allowed

37
Q

What are four traditional functions of wills?

A
  1. ritual - the performance of some ceremonial for the purpose of impressing the transferor with the significance of his statements
  2. evidentiary - supply satisfactory evidence to the court
  3. protective - prophylactic purpose of safeguarding the testator
  4. channeling - standardization of form simplifies administration
38
Q

What are the three basic formalities of an attested will?

A
  1. Writing
  2. Signature by the testator
  3. Attestation by witnesses
39
Q

What is “In re Groffman” about?

Facts?

Issue?

Holding?

Rationale?

Apply in CA?

A

Attestation

A widow challenges the validity of a will where both witnesses acknowledged a testator sign his will, but were not present at the same time.

Is will valid if it is witnessed by two people in front of the testator if the witnesses were not together?

No

Though a will represents the testator’s testamentary intentions, it is not valid if the testator does not acknowledge his signature or sign in the presence of two witnesses who are together at the time the testator signs or acknowledges his signature.

Yes; that’s what the statute says

40
Q

What is the witnessing requirement? What statute?

What if the witness requirement is screwed up?

A

The will shall be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom:

  1. being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment [of the signature] or [of the will], and
  2. understand that the instrument they sign is the testator’s will.

6110(c)(1)

6110(c)(2): If a will was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in compliance with that paragraph **if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will. **

41
Q

What is “Stevens v. Casdorph” about?

Facts?

Issue?

Holding?

Rationale?

A

Attestation

Homer Haskell executed a will at bank, but not in the presence of two witnesses who did not witness him signing or acknowledging his will. The trial court admitted the will to probate finding that the will substantially complied with the statute while the Circuit Court overruled their decision.

Is a will valid where the witnesses do not see the testator sign the will or acknowledge the will, nor does the testator see the witnesses sign the will or acknowledge their signature, even though the execution takes place a one location and the two witnesses are informed that the testator is attempting to execute his will.

No; it’s not valid.

A will is not valid if the testator did not sign in it or acknowledge his signature in the presence of two witnesses, who are together, and sign their name or acknowledge their signature on the will. The law favors intestacy over intestacy but this Court has held that a valid will must have testamentary intent and execution in a manner provided by the code, concurrently.

42
Q

How does CA interpret “present at the same time” in 6110(c)(1)?

What about this and Stevens v. Casdorph?

A

In the conscious presence

greater the distance, less likely to be conscious presence

43
Q

Need the witnesses sign the will at the same time, under 6110(c)(1)?

A

No, just witness either the signing of the will or the testator’s acknowledgment of the signature or of the will and understand that the instrument they sign is the testator’s will, at the same time

44
Q

What is meant by a “signing” in 6110(c)(1)?

Are x’s admitted?

A

any mark that was intended to adopt the will

No, by common law

45
Q

Does 6110(c)(1) require the testator to sign the will before witnesses sign it?

Explain.

A

Yes

Not a will until signed by testator

Wills and Trusts (15 decks)

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