Wills 1

Question 1

Phrases:

Answer 1

“UNLESS the Will states otherwise”

Question 2

***Elements of an Attested Will:

To be VALID a Will must be:
1) in WRITING:

Answer 2

2) SIGNED or ACKNOWL. by T
2b) OR signed by s.o. in T’s presence & at T’s DIRECTION
3) in the JOINT PRESENCE of at least 2 witnesses
4) who [later] ATTEST T’or’s SIGNATURE /ACKN.
CA: Witnesses need not attest =sign in each other’s presence.

Question 3

T may ACKNOWLEDGE 
1) his W Or 
2) his prior Signature 
in the Witnesses' JOINT PRESENCE, which means 
CONSCIOUS Presence, i.e., the ...: +CA:

Answer 3

SIGNING took place within awareness
[=Hearing Distance].

CA: Phone
b/c lacks Proximity.

Question 4

***Interested Attesting Witness: At CL, if 1 of the 2 necessary attesting Witnesses was also a BENEFICIARY under the Will …:

[Creditor/L/Tee W are NOT interested Ws]

Answer 4

the W was INVALID b/c: incompetent W.
In CALIF.: the interested BEN is Presumed to have Secured the gift by Fraud or UI [=>infected Part is Void]
If not rebutted: IW takes LESSER of Testate or INtestate share. CA: N/A if IW is a FID. Supernumerary Ws.]

Question 5

**INTEGRATION

Under the doctrine of integration, a Will consists of:

Answer 5

1) all pages PHYSICALLY PRESENT at the time of execution that were,
2) INTENDED to be part of the W.

[ Implied from: PHYSICAL or
LOGICAL CONNECTION of the pages.]

Question 6

**To Incorporate by REFERENCE an extr. WRITING into a W, …+CA:
Trigger: T attaches [phone list] to holo W
[=>Incorp. by REF. even if Integration fails
+Parol ev. ADMISS.]

Answer 6

1) the W must sufficiently DESCRIBE the DOC to be ID’d.
2) doc must EXIST at time of Execution !
3) & T must INTEND to INCORP. the DOC into the W [<= implied from 1)&2)].
CA: Only TANGIBLE Pr (NOT Real Pr).

Question 7

**Acts or Facts of INDEPENDENT SIGNIFICANCE: +CA:

([to my employees] i.e. even w/o the W, the fact would have existed. CA: [“All my Pr to people I will name on a note tomorrow.”])

Answer 7

1) A NON-Testam. ACT or EVENT
2) that the W refers to
3) is admiss. to ID BENs or Pr if:
4) it has suff. LEGAL SIGNIF.
5) other than the Sole purpose of DISPOSING Pr under the W.
CA: Only TANGIBLE (No Real) Pr.

Question 8

[**]
POUR-OVER Will is …:

[+if Trust is AM later: ]

Answer 8

a DEVISE of Pr to a [3P’s] TRUST that PRE-EXISTED or is Created BY the Will.
[ +if Trust is AM later:
must exec. a CODICIL
(=to Republish the W +incorp. by REF the AM’d Tr => W speaks as of Codicil’s date.)]

Question 9

Pour-Over Provision is VALIDATED by:
Trigger: s.o. created an inter vivos T, now T’or’s a W provision devises assets to Tee.
[=> devised Pr becomes part of the T].

Answer 9

1) incorporation by REF
2) Acts of INDEPENDENT SIGNIF., or under
3) UTATA by referring to the VALID Trust that EXISTED at exec.

Question 10

DEFENSES to a Will:
TESTAMENTARY INcapacity 
(b/c VOIDS the entire W): 
When W is executed, 
T'or must ...:

Answer 10

1) be 18 years old & 
be ABLE to Understand: 
2) the EXTENT of his Pr,
3) the NATURAL OBJ. of his bounty [recognize family +friends]
4) & that he is SINGING a W

Question 11

INSANE DELUSION:
W can be attacked if at the time executed, T’or: +CA:
(Voided AFFECTED PART goes to: Resid. devisee or by Intestate succ.):
Trigger: T’or believes that his /Spouse is unfaithful /Kid is not his /Long-lost relative

Answer 11

1) had a FALSE BELIEVE
2) product of a SICK MIND
3) UNsupported by any ev.
4) & the delusion MATERIALLY AFFECTED his W.
CA: No Causation /Rational mistake /Religious belief.

Question 12

DFN to a Will:
--Fraud i.t.EXECUTION (=i.t.Factum) 
=> ENTIRE W is VOID & 
passes by INTESTATE Succession.
[X forges T's sign. /Misleads T into believing that the DOC T is signing is not a W.]
--**Fraud i.t.INDUCEMENT is... +Remedy:

Answer 12

1) an *INT’L MISREPR. of *MAT. fact
2) for the PURPOSE of INDUCING T’s ACT
3) which DOES induce T’s In/Action.
=> only “infected” part is void.
Remedy: ConsT: If UE or other injustice [omission of a BEN], Ct. will force wrongdoer to be a Constr.Tee.

Question 13

**Fraudulent PREVENTION of a W/Gift is:

Answer 13

FRAUD IN THE INDUCEMENT:
b/c wrongdoer makes a fraudulent misrepr. that AFFECTs T’s DESIRE to (not) MAKE /REVOKE a W/Gift.
[b/c T is told a lie].

Question 14

**A p.f. CASE of UNDUE influence requires that … :
Cf: Probate Code’s STATUTORY UI PRESUMPTION if BEN:
1) DRAFTED the W or
2) is a CARE CUSTODIAN
CA: 1) BLOOD rel. or SPOUSE

Answer 14

1) T’or is SUSCEPTIBLE to infl.
2) wrongdoer had OPPORTUNITY to EXERT INFL. &
3) UNNATURAL Disposition resulted [s.o. not expected to take]
[Overpowered T’or’s MIND & FREE WILL
CA: BEN Merely Begged & Nagged]

Question 15

**If p.f. case Or a PRESUMPTION UNDUE influence isNOT Rebutted, then …:

Answer 15

only that PART of the W affected by UI is INvalid.
[ goto: 1) RESIDUARY
2) by intestate succession
3) OR via CT, whichever is BEST Result]

Question 16

**Under Calif. CASE LAW

a PRESUMPTION of UNDUE influence arises when there’s a …:

Answer 16

1) CONFID. Relationship b/w T & alleged wrongdoer.
2) Active PARTICIPATION
[in exec./prep. CA: mere Lie]
3) +UNNATURAL Disposition (supra)
[wrongdoer is s.o. who ordin. would NOT TAKE a Devise].

Question 17

**Mistake in CONTENT +CA:
Trigger: 
T meant "to John & Mary," 
but only said "to John"
[LIST: Mistake in: 1) Content 2) Execution 3) Inducement 4) Description 5) Validity of subs. instr=DRR 6) involving living Children =pretermission.]

Answer 17

While Cts. may STRIKE ACCIDENTALLY ADDED words (Mist. in ADDITION), there’s NO REMEDY for accid. left out words (Mist. in OMISSION).
[else all Ws =subj. to attack.
CA: INTENTional addition that’s a HOLO Codicil /Check: DRR /Argue: AMBIGUITY.]

Question 18

Mistake in the EXECUTION +CA:

If T signs a W, believing its a NON-testamentary instrument … +CA:

Answer 18

MAJ.: NO INTENT to make a W
=>W VOID +no extr. ev.
CA: MIN. rule for Reciprocal Ws
=Mutual Ws: IFF H&W mistakenly sign each others’ W
=>Ct. may REFORM.
CCA: Reciprocal Ws Create NO Presumption of a K.

Question 19

**MISTAKE in “INDUCEMENT.”
If a gift is (not) made …:

[Trigger: T wants to give John $10k, but doesn’t b/c he thinks John is dead.
Cf. insane delusion =UNreas. mist.
/Fraud =s.o. tricks T]

Answer 19

based on T’s ERRONEOUS BELIEF:
=>No Relief UNLESS Both: the
1) Mistake AND
2) the DISPOSITION that T would’ve made BUT-4 the mistake appear ON the FACE of the W.
[“But if X were not dead, I would leave him $$.”]

Question 20

Mistake in DESCRIPTION (=Ambiguity):

[“I leave Pr to cousin John.” But T’or has no (or 2) cousins named John.]

Answer 20

If NO BEN or Pr FITS the Description in the W, Or 2+ BEN or items of Pr fit:
EXTRINSIC ev. is admiss. to determine T’s INTENT.

Question 21

**DRR: allows a Ct. to IGNORE T’or’s REVOCATION of a W(#1) caused by MISTAKE …+CA:

Cf: Attempt to Revoke by INvalid W#2.

Answer 21

DRR REINSTATES the ORIG. gift on the theory that T’or revoked his SUBST. IDENTICAL W#1 CONDITIONAL on the validity of the new dispo., SO that but-4 a MISTAKE of FACT /LAW he’d PREFER W#1 be Probated.
CA: W#1 doesNOT more closely approx. his INTENT. [Gift in W#2 is DEcreased]

Question 22

(PARTIAL) CANCELLATION …:

[SIG. & DATE are DEEMED ADOPTED =>interlineations need no new sig.??]

Answer 22

canNOT INCREASE a Gift to a Co-BEN.

Any increase goes to RESIDUARY if no BEN is Specified.

Question 23

MISTAKE Involving Living Children (=PRETERMISSION = accidentally omitted) …:
Trigger:
T fathers a child he’s unaware of /thinks is dead when he executes /Republishes by Codicil.

Answer 23

If the only reason T’or fails to provide for a living child is b/c he MISTAKENLY BELIEVES C is DEAD/NONEXISTENT, C is treated as preterm. & takes its INTESTATE share.
[Cf. GR: If C is already born when W is Executed /Republ. by Codicil => C wasNOT accid. omitted =NOT pretermitted => takes nothing.]