Will Components Flashcards
Incoporate by reference
A writing that is not valid as a will may be incorporated by reference into a will
if the will manifests an intent to incorporate the writing and the writing is identified with reasonable certainty.
This writing must exist at the time the will is executed. (Note that California also allows a testator to make a
tangible list of personal property which may be prepared before or after the execution of the will.)
Codicil
A codicil is a supplement to a will that modifies it, adds to it, explains it, or revokes it. A codicil must
generally be executed in the same manner as a will. A codicil is said to republish any will that it refers to.
When republication takes place, that republished will is deemed to be executed on the same day as the
codicil. In California, a codicil can also remedy any issues with the initial will (such as an interested witness
problem) as it can be treated as the will and incorporate by reference the will that was not properly executed.
Further, to the extent that the codicil is inconsistent with the will, the codicil controls
nFacts of Indepedent Significance
A will may dispose of property by reference to acts and events that take place after the execution and without formalities that attend to the will itself, i.e., things can happen (variables) after execution that can affect disposition without formalities (e.g., a will to pass a gift in equal shares to T’s employees. This provision is valid even if the employees change after execution)
Pour-Over Provision
T may dispose of property by will to an existing inter vivos (established during lifetime) trust. Hence, an inter vivos trust may be a “will substitute,” provided the will is valid
- This trust must be clearly identified in the will and executed before/concurrently with the will
- This trust may be amended or revoked after execution of the will
- This trust may be unfunded during T’s lifetime
Ambiguity of the Will
CA permits extrinsic evidence (EE) if T’s intent or language is ambiguous
