Will - Creation Flashcards
Required for valid will?
(1) Testamentary Capacity
(2) Testamentary Intent (present intent to make instrument their will)
(3) Legal Capacity (individual 18+)
(4) Formalities for the will
Valid Attested Will
(i) in writing
(ii) signed by testator (or by another in testator’s presence and at his direction)
(iii) testator signs/acknowledges signature in joint presence of 2+ witnesses
(iv) witnesses understand instrument being witnessed is testator’s will
(v) both witnesses sign will during testator’s lifetime
* witnesses don’t need to sign in front of each other
Testator must intend to make particular instrument her will
Integration
If will is on more than one paper, it consists of all papers present at time of execution and that testator intended to constitute will
* Extrinsic evidence allowed to show which papers were intended to be part of will
* If there’s physical connection of papers, testator’s intent and presence of papers are presumed
Act of Independent Significance
CA: Will may refer to acts that have significance outside of the will. Allows testator to change disposition of his property without changing the will
Incorporation by Reference
Writing can be incorporated into will be reference if:
(i) testator intended to incorporate material by reference
(ii) writing existed at time will was executed
(iii) writing clearly identified by description in will
Holographic Will
Handwritten will with testator’s signature
* Material provisions of will (gifts made, names of beneficiaries) and signature must be in testator’s handwriting
Codicil
Testamentary instrument intended to modify, amend, or revoke existing will
* Requires same formalities as will
* Can be holographic or attested
Harmless Error Doctrine
CA: If will doesn’t comply with will formalities, can still be admitted to probate if will proponent establishes with clear and convincing evidence that testator intended instrument to be his will.
* This is intended to be used for attested wills; might be applicable to holographic wills
Interested Witnesses
There is presumption that gift to interested witness was procured through undue influence, fraud, duress, menace UNLESS:
* Interested witness rebuts presumption
* There were at least two other disinterested witnesses
If interested witness fails to rebut but is an heir, can receive up to intestate share (unless there’s proof there really was bad act)
Testamentary Capacity
Requirements - standard for testamentary capacity is lower than for contractual capacity; must show testator understood
* nature of act (creating will)
* extent of her property
* persons who are the natural objects of her bounty (children/spouse)
Burden of proof: CA courts recognize presumption that testator was sane, so challenger has burden of proving mental incapacity
Timing: Testator must have mental capacity at time of executing will
* Holographic wills: if testator lacked capacity around the time holographic will executed, will invalid UNLESS it’s shown testator had testamentary capacity when will executed
A testator who is old, ill, forgetful, or addicted to drugs or alcohol
does not necessarily lack the mental capacity to execute a will.
Per Stirpes
Per Stirpes: Each child of decedent gets a share of the estate; if child dead, then it passes to descendants by representation.
Per Capita: If children all dead, skip them and go to next generation of living descendants. Split estate amongst them.
Mistake as to Contents - Reformation
Unambiguous will can be reformed to conform to testator’s intent if there’s clear and convincing evidence showing mistake + what testator’s actual intent was when will was drafted.
