Will Validity Flashcards
are negative wills effective?
no (e.g., disinheriting language only)
when does will take effect?
after testator dies and the will is probated (i.e., determined to be valid)
harmless error doctrine
CA excuses harmless errors with respect to will formalities if there is clear and convincing evidence that at the time the testator signed the document, the testator intended the document to be their will
savings statute
a will executed elsewhere is valid if it complies with:
1) CA law
2) the law of state where it was executed, OR
3) law of the place where at the time of execution or at death the testator was domiciled, had a place of abode, or was a national
**these determine whether will is admissible to probate; once will is admitted, local law governs construction and application of its provisions
requirements of a valid will
1) legal capacity
2) testamentary capacity
3) testamentary intent
4) formalities
- attested -> witnessed
- holographic -> entirely in testator’s handwriting
legal capacity
18 or older when you make the will
**doesn’t matter if you’re over 18 later and still like the will you made when you were 15, what matters is how old you were when you made it
testamentary capacity
ability to understand:
1) nature of the act (to dispose of property on death)
2) nature and extent of testators property (exact not needed)
3) the persons who are the natural objects of testator’s bounty (know who your family members are)
this mental capacity must exist at time will is executed
capacity issues:
a) mentally challenged individuals - can still make will if meet elements above
b) lower standard than contractual capacity, but showing that someone can conduct ordinary business is good evidence of testamentary capacity
c) if person adjudged incompetent, creates a rebuttable presumption of lack of capacity (can be overcome by showing that they meet standards above, e.g., during a lucid interval)
d) mental or physical ailments or drug addiction - doesn’t necessarily mean they lack capacity
testamentary intent
must have present intent to make a particular instrument their will
ineffective deeds cannot be wills b/c of lack of testamentary intent
wills executed as a joke/sham are void
letters saying you’re going to make a will or asking attorney to make will are not wills
formalities of attested wills
1) in writing
2) signed by testator
- any mark, no specific location, proxy signatures allowed if other person signs in testators presence/by their director or a conservator signs pursuant to a court order
3) joint presence of at least 2 witnesses when testator signs or acknowledges
4) 2 witnesses must sign will during testator’s lifetime
- can’t be after testator dies
5) witness must understand that the instrument being witnessed is a will
- no minimum age but must be competent at time of execution
rules about interested witnesses
gift to witnesses presumed to be procured through duress, menace, fraud, or undue influence, but can take if:
- witness rebuts presumption
- there are at least two other disinterested subscribing witnesses, or
- the interested witness who is also an heir may receive up to their intestate shares
holographic wills
1) will in testator’s handwriting
2) permitted in CA if signature and material provisions are in testator’s own handwriting
- testamentary capacity and intent required
- witnesses NOT required
3) signature needed (no specific location needed)
4) date not required but helpful
oral wills
CA does not recognize for any purpose
CA statutory will
state sponsored will form allowed testator to execute a will without an attorney
same rules generally apply, but formalities required for execution are different:
- must complete blanks and sign will
- each witness must observe testator signing
- each witness must sign in presence of testator
