Wills Flashcards
Attested will
Writing
T’s sig - T or 3rd pty in T’s presence and at T’s direction
Wit’s sign during T’s lifetime - need not sign in each other’s presence nor in T’s presence
T’s sig or T’s acknowledgment of sig must occur in joint presence of at least 2 wit’s - something about the execution process must convey to the wit’s the info nec for them to understand that the doc being signed is T’s will
Harmless error rule - CC∑
For T’s dying on or after 1/1/2009, if a will isn’t executed in compliance w/ wit req’s, will may be probated if the proponent of the will establishes by CC∑ that at the time T signed the will, he intended it to constitute his will
Interested wit presumption
Will isn’t invalid
But unless there are 2 other disinterested wit’s, a presumption arises that wit-bene secured the gift by wrongdoing
- if rebutted, wit-bene takes gift
- if not rebutted, wit-bene takes amt as doesn’t exceed what he would be given by IS
Holographic wills
T’s sig
Material provisions in T’s handwriting - gifts made and bene’s names
Testamentary capacity
Easy to satisfy At time of execution, T - is over 18 yrs old - understands extent of prop he owns - understands natural objects of his bounty - understands nature of execution of doc
Negating capacity
Undue influence
Insane delusion
Fraud
Undue influence - prima facie case
- susceptibility - T has a weakness such that he’s able to have his free will subjugated
- opportunity - wrongdoer has access to T
- disposition/motive/active participation - wrongdoer’s use of force, threat of force
- unnatural result - wrongdoer is taking a devise and this person ordinarily wouldn’t be expected to take a devise
Consequences - only that part of the will affected is invalid, ct can give prop to residuary devisees, heirs by IS, or CT
Undue influence - presumption based on confidential relationship
Confidential relationship
Disposition/motive/active participation - wrongdoer’s use of force, threat of force
Unnatural result - wrongdoer is taking a devise and this person ordinarily wouldn’t be expected to take a devise
Consequences - only that part of the will affected is invalid, ct can give prop to residuary devisees, heirs by IS, or CT
Undue influence - statutory presumption
Provision of an instrument making a donative xfer to a person who drafted the instrument, person in a FD relationship w/ T, etc. is product of undue influence
Consequences - xferee is deemed to have predeceased T w/o spouse or issue, gift lapses and passes to residuary devisee or by IS
Insane delusion
T had a false belief False belief was product of a sick mind No ∑ to support belief Delusion must have affected T's will Consequences - only that part of the will affected is invalid, that part goes to residuary devisee, or if none, by IS
Fraud
Rep'n Of material fact Known to be false by wrongdoer For purpose of inducing axn or inaxn and In fact induces axn or inaxn desire
Fraud in the execution
Doc is invalid bc execution itself is invalid
Consequences - entire will is invalid, prop passes via IS unless there’s a prior will that was validly executed
Fraud in the inducement
Misrep’n that induces only part of the will to be executed
Consequences - only tainted part is invalid, ct can give prop to residuary devisees, heirs by IS, or CT
Express revocation by subsequent instrument
T has present intent to revoke
W1 can be revoked by W2 if W2 expressly revokes W1
Must be valid
Implied revocation by subsequent instrument
T has present intent to revoke
W2 revokes W1 by implication if W2 totally disposes of T’s estate
Must be valid
Revocation by phys act
T has simultaneous intent to revoke
Cancelling - lining out or crossing out - cancellation to increase a gift is prohibited
Obliterating - erasing
Interlineation - writing betw the lines
Act must be done by either T or by someone in T’s presence and at T’s direction
Dependent relative revocation
T revokes will on the mistaken belief that another will or codicil would be effective and but for the mistake T wouldn’t have revoke the first will
Prior will may be revived
Revival
Revoked will may be probated
W1 must still be in existence, T must have intent for W1 to have and W2 was revoked by phys act
Integration
T must have intended for papers to be part of the will and
Papers must have been actually of phys present at time of execution
Incorporation by reference
Writing
In existence when will was executed
Will shows intent to incorporate doc
Writing suff described in will
Acts of independent significance
Act or doc must have significance apart from T’s motive/will itself
Ask - even w/o will, would this fact have existed?
Look for a list referred to by T
Republication by codicil
Codicil republishes a will - causes will to speak from date codicil is executed
Scenarios
- pour over wills and IBR
- omitted spouse/children prob’s
Specific gifts
Particular item, something unique
“my,” “mine”
Only specific gifts can adeem by extinction
General gifts
Can be paid out of general assets, nothing unique
Don’t adeem by extinction
Typically only general gifts adeem by satisfaction
