Will Validity Flashcards
Harmless error doctrine
CA is one of the few states that excuses harmless errors with respect to will formalities if there is clear and convincing evidence that the testator intended the document to be her will at the time she signed it.
When does a will take affect?
At the time of the testator’s death.
Applicable law for real property
Real property is governed by the law of situs, or the law of the state where the property is located.
Applicable law for personal property
The law of the place of the testator’s domicile.
A will executed outside of CA is valid if it complies with:
- CA law
- the law of the state where it was executed; or
- the law of the place where at the time or execution or at death the testator was domiciled, had a place of abode, or was a national
These laws only apply to determine whether the will is admissible to provate
Requirements for a valid will or codicil
- legal capacity
- testamentary capacity
- testamentary intent
- formalities (i.e., attested or holographic)
Legal capacity
will requirement
At least 18 years old
Testamentary capacity
will formality
Testator must understand:
1. the nature of the act (i.e., to dispose of property upon death)
2. the nature and extent of the testator’s property (exact knowledge is not needed)
3. the persons who are the natural objects of testator’s family (i.e., family members)
mental capacity must exist at the time the will is executed
Lower standard than contractual capacity
Can mentally challenged individuals make wills?
Yes, as long as they are at least 18 years old and have testamentary capacity
Can someone who has been adjudicated incompetent have testamentary capacity?
Yes, but they must overcome the presumption of lack of the required mental capacity
E.g., can execute valid will during “lucid interval.”
Testamentary intent
will formality
The testator must have the present intent to make a particular instrument their will
Wills executed as a joke (sham wills) are void
Formalities of attested wills
For a will to be valid, it must be:
1. in writing
2. signed by the testator
3. signed and acknowledged by testator in the joint presence of at least 2 witnesses
4. signed by 2 witnesses during the testator’s lifetime
5. witnesses must understand that the instrument is a will
Testator’s signature
A signature is any mark the testator makes or adopts with present intent to authenticate the will.
Need not be at the end of instrument.
**Proxy signatures are allowed if:
**1. proxy signature made in the presence and at the direction of testator; or
2. a conservator signs for the conservatee pursuant to a court order
Attestation
Will must be signed by at least two witnesses. There is no minimum age to be a witness, but a witness must be competent at the time of execution.
Witness must know that the instrument is a will.
Signing by testator must occur in the joint presence of both witnesses (harmless error rule applies)
Witness must sign before testator dies
Holographic will
Will in testator’s handwiring.
Permitted in California if the signauture and material provisions of the will are in the testator’s own handwriting.
Testamentary intent and capacity are required; witnesses are NOT required.
