Will Formation Flashcards
Formal Will Formation
A testator creates a valid formal will where there is:
* ** testator capacity **
* **present testamentary intent **– sign an interest and understand they are executing a will
* to sign – testator or someone in their presence and direction must sign the will
* writing – entire doc must be in writing
* in the joint presence of two witnesses who understand the instrument is a will – must be aware that the instrumnet is a will and be of sufficient mental capacity to understand that they are witnessing a will being executed.
When are witnesses interested?
There is a presumption of fraud, duress or undue influece if a witness has an interest in the will property – the court will presume the witness procured the devise by fraud, duress or undue influence.
Substantial Compliance Doctrine
If a will was not properly witnessed, a court will treat the will as duly formed when the proponent of the will establishes by clear + convincing evidence, that at the time the testator signed the will, they intended the document to constitute her will.
Holographic Will
Testator creates a holographic will when:
* intends the doc to be a will
* has capacity
* handwrites the material provisions
* signs the document
Harmless Error Doctrine
California law states that a will may still be admitted to probate if the proponent establishes by clear and convincing evidence that the testator intended the document to be her will
When will lack of testamentary intent be found?
A court may find a testator lacked the requisite intent when the testator:
* lacked capacity,
* suffered from an insane delusion,
* was defrauded
* was subject to undue influence
* or there was a mistake
What is required for capacity?
- At least 18 years old
- knows the nature and extent of his property;
- the persons who are related to him, such as spouses and parents, and those whose interests are affected by the will; and
- the nature of the testamentary act.
What is insane delusion?
Testator suffers from insane delusion when:
* T had a false belieft
* The false belief was the product of T’s sick mind
* No evidence supports the belief AND
* The delusion affected the T’s will
Effect: only part of the will affected by the delusion is invalidated. Affected part goes to residuary legatee
Fraud in the Inducement?
Inducement – wrongdoer’s misrep affect the contents of a testator’s will, the affected part of the will is invalid and a court may give the property to residurary devisee, to heirs at law by insteastacy if there is no RL or create a constructive trust
Fraud in the Execution?
T does not intend the doc to be their will: court will invalidate the entire will if there was fraud i the execution and the porperty passes by itnestacy unless there was a validly executed prior will.
Undue Influence
UI when a T’s free agency is subjugated.
The affected part of the will is invalidated and the affected part goes to residuary devisees, heirs at intestacy or into a construcitve trust.
- confidential relationship between T and wrongdoer exists
- susceptibility – T has a weakness such that they are able to have their free will subjugated psychologically, financially, physically or through some other way
- opportunity – wrongdoer has access to the testator (T’s friend, business associate, relative)
- Unatural result – wrongdoer took the devise but is not someone who would ordinarily be expected to receive a devise.
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CA presumption of IU – In California, a will is valid if it is signed by an interested witness. However,
unless there are two disinterested witnesses present, there is a presumption of duress, menace,
fraud, or undue influence if the will makes a gift to the interested witness. If the presumption is not
rebutted, then the witness may not take more than he would have received had the testator died intestate.
Mistake?
T makes a mistake in content, execution, inducement, descritpion, validity of subsequent T instrument or regards to living children.
Content
Mistaken ommission of someone = no remedy
Mistaken added someone = CT can strike out
Execution
T signs will not knowing its a will = will invalid
T signs wrong will bc there are reciprocal wills = CT may reform
Inducement
Particular gift is made or omitted based on T’s erroneous belief = generally no relief UNLESS M appears on the face of the will.
Description = PER permitted for latent defects to determine T’s intent
Validity of subsequent intrument = If a T revokes their will based in the mistaken belief that a sq will or codicil effectuates ther intent, then by operation of law – the revocation of the 1st will bbe deemed conditional and relative to the secord effectuating the T’s intent.
Dependent Relative Revocation
Dependent relative revocation (DRR: “didn’t really revoke”) cancels a revocation based on mistake of law or fact
i. If T revokes on the mistaken belief that another disposition would be effective, and but for this mistake T would not have revoked his will, the revocation is set aside, and the original will remains in force
ii. If revoked by subsequent instrument, EE not admissible to show the mistake
iii. If subsequent instrument is defective in the first place, revocation is also ineffective—DRR inapplicable
Pretermitted Child
PC = a child is ptretermitted if born or adopted after all T instruments are executed and not provided for in any T instrument.
Pretermitted child receives intestate share, unless 1) the will shows omission was intentional, 2) T provided substitute transfer outside will, or 3) T had other children and left estate to parent of omitted child.
i. Substitute transfer means T provided for the omitted child outside the will when T leaves substantially all estate to SS who is child’s parent.
Abatement = any gift from a T instrument is abated to the extent necessary for the living child to take his intestate shared.
