Wills Flashcards
Attested Will
A valid W must meet the formalities of being in (1) writing, (2) signed by TR and (3) witnessed. Signature could be by someone in TR’s presence & at his direction. Ws req that witness know the doc is a W and both are present at the same time to witness the TR’s signing.
Interested Witness
An interested W creates a rebuttable presumption that the witness procured the devise by duress/fraud/UI, unless there are 2 uninterested Ws or devise is made solely in fid capacity.
Harmless Error Doctrine
If W isn’t executed in compliance w/ the witnessing reqs, it may nevertheless be admitted to probate if the proponent of the W est by C&C evi that at the time the TR signed the doc he intended it to constitute his W.
Holographic Will
W that doesn’t comply w/ the formalities req’d for W can qualify as valid holo W if the sig and material prov are all in the TR’s handwriting. If no date and there’s doubt as to whe it or another W controls, the holo W is invalid to extent of any inconsistencies.
Testator’s Capacity to Make Will
TR must have ability to understand:
(1) the nature of her act;
(2) the extent of her property;
(3) persons who are the natural objects of her will.
Integration
A W can be written on more than one piece of paper. A W consists of all papers that were actually present at the time of execution and that the TR intended to constitute her W. EE is admissible to show which papers were intended tb integrated.
Incorporation by Reference
To incorporate a doc by ref:
(1) it mb in existence at the time the W was executed;
(2) if mb sufficiently described in the W; and
(3) there mb proof that the proffered doc is the one described in the W.
If these reqs are met, the cts will infer that the TR intended to incorporate the doc.
Codicil
Codicil is an amendment to an existing W made by TR to change, explain, or republish his W, must meet same formalities as W or holo.
Effect on Revocation of Codicil
Revo of codicil leaves the remaining W valid, but revo of W revokes both W&C.
Pourover Will
Pourover W is a W that IDs a T created by the TR into which he can pour over his probate assets and thus avoid going through probate if the assets are less than 100k. Pourover W valid if T is ID’d in W; terms are set forth in an instrument other than W, and T was exec concurrently or before W exec.
Ways Will Can Be Revoked
(1) Physical act;
(2) Subsequent will.
Revocation by Physical Act
A TR can revoke a W by burning, tearing, destroying or obliterating it, w/ the intent to revoke. Witnesses are not necessary for a valid revocation.
Intestate Succession
Any party of a decedent’s estate that is not properly disposed of by will passes to the decedent’s intestate heirs as prescribed by statute. Under intestacy statute, if there is no surviving S, a decedent’s intestate estate passes to her issue.
Revival
When W is revo by physical act or subseq W, and then subseq W is revoked as well, the 1st W is revived if TR intends for it tb revived. EE permitted.
Lapse and Anti-Lapse
Lapse and antilapse rules apply when the persons taking under W are no longer alive at the time of TR’s death. Traditionally, when a beneficiary predeceased the TR, the gift lapsed and fell into residue or intestate succession if no residue. Modern, when a beneficiary predeceases the TR, issue of the B take in his place, applies to kin only.
Omitted Spouse
Omitted S will receive intestate share if they were married after W made, unless they were intentionally omitted as indicated on W or otherwise provided for outside W w/ intent to do so in lieu of W or waived their share by valid agt.
Omitted Child
A TR can intentionally choose to disinherit her children, but most states, including CA, have statutes protecting children from being unintentionally omitted. Under CA law, if a decedent fails to provide for a child born or adopted after exec of all of the decedent’s testamentary instruments, the child is to rec her intestate share of the decedent’s property.
Undue Influence
Mental or physical coercion that deprives the TR of her free will and substitutes the desires of another for hers.
Elements:
(1) influence was exerted on the TR;
(2) the effect of the influence was to overpower the free will of the TR; and
(3) the product of the influence was a W that would not have been executed but for the influence.
Undue Influence Factors
Factors include:
(1) opportunity to exert influence;
(2) the susceptibility of the TR to influence due to age or physical condition;
(3) the the B was active in procuring the W;
(4) whe the disposition in the W are at inconsistent w/ the expressed intentions of the TR;
(5) and the the W provisions seem unnatural.
CL Presumption of Undue Influence
A presumption of UI, which shifts the BOP to the will proponent, can arise when:
(1) a confidential relationship exists between the TR and the B;
(2) the B participated in drafting or executing the W; and
(3) the will provisions are unnatural and favor the alleged influencer.
CA Statutory Presumption of Fraud/UI
In CA, a statutory presumption of UI arises when a donative transfer is made to:
(1) the person who drafted the instrument or her relatives;
(2) a person who transcribed the inst and was in a fid relationship w/ the TR when the inst was transcribed; and
(3) TR’s care custodian.
Dependent Relative Revocation
DRR arises when the testator revokes a will under a mistaken belief that a new testamentary disposition is valid. If the new disposition is invalid, the revoked will or revoked provision is restored so long as that is consistent with the testator’s intent.
Ademption
Applies where a specific gift devised has changed form from that ID’d in the W or no longer exists.
A gift adeems by extinction if the specific gift ID’d in the W is not part of the estate at the time of the TR’s death.
CA Ademption
In CA, EE of the TR’s intent is admissible, and may affect the classification of the legacy. Cts dont favor ademption and use various devices to avoid it.
