Wills Flashcards
California courts will probate a valid will if it was validly executed as per the laws of
1) California,
OR
2) per the laws of the state where the decedent was present at the time the will was executed under the full faith and credit clause
OR
3 laws of the state where the decedent was domiciled at the time of the will’s execution or death.
How do you know if it is valid will to be executed in CA law
must be written and signed by the T or at the T’s direction
Must be witnessed by 2 disinterested witness who sign in the T’s lifetime and understand they are signing a will
T must have testamentary intent
Know the assets contained in her estate and the natural bounty of her estate
To show that the devisee had Testamentary capacity, you must prove that
(1) be over 18;
(2) be of sound mind;
(3) understand the nature of their assets and
the extent of their bounty (those who could possibly receive under the will); and
(4)understand that they are creating a will.
2 disinterested witness (conscious presence test)
The witnesses do not need to be aware of the actual contents of the will, such as which people get which devices, but they must be generally aware that the document they are
signing is a testamentary instrument and that the T has signed it
Holographic will
have the material provisions in the testator’s handwriting
signed by the testator.
no witness or date requirement.
There is a requirement that the testator intend the document constitute a testamentary instrument
Ommitted spouse is one that is married with the devisee after the execution of the testators will and the spouse is not mentioned in the will. An ommitted spouse will take unless
intetional for spouse not to take
Spouse was given property outside the will
Spouse is a party to a valid K waiving her right to the sare in the estate
Deceedent died within less than 6 months after the marriage commenced and there is clear evidence of fraud and undue influence
Omitted Child
A child who is omitted under a will is entitled to an intestate share, unless
the omission was intentional, the decedent had other children when the will was made
and left substantially all of his assets to their surviving parent, or provided for the child
outside of the will, or did not know the child existed
Substantial compliance doctrine
If a will is not executed in compliance with the law, the will is treated as if it had been executed in compliance if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended it to constitute the testator’s will.
Revocation of a will or will clause can be revoked by
physically, expressly or impliedly
Physical revocation
some physical act, such as tearing, crossing out, obliteration, destruction, or burning.
Express revocation
occurs where a subsequent will specifically
disavows a previous wil
Implied revocation occurs
where a subsequent will contains clauses or gifts which are inconsistent with the previous will, such that they cannot both
exist at the same time. In these cases, the latter will controls.
Under California law, a will can be amended, revoked or otherwise modified in whole or part by
a subsequent codicil, provided it is validly executed.
A validly appointed conservator can make a will or codicil for a now-disabled / incompetent person.
Case Law indicates that Undue infullence can happen in the following three ways:
Where one has a confidential relationship between the Testator and the person accused of having undue influence
Active participation by the person causing undue influence
If there was an unnatural gift because of the undue influence
To take under a will, the beneficary must be
ascertainable
Usually all of the material terms of the will must be
within the will itsel and EE is not allowed
Theory of acts or facts of independent significance
the court may use external facts to fill in the
gaps of a will if the external facts would be in existence regardless of the will
when you revoke one copy of the will the presumption is that
you revoked the other
Ademption by extinction presumes that the
gift fails
Exceptions to ademption by extinction
1) when the stock is changed to another form of stock through merger etc
2) when the executor of the estate sells the property, and
3) when Testator receives condemnation proceedings and there’s no issue of traceability.
What happens when the T doesnt devise her entire estate using her will
remaining goes to her heirs via intestate sucession
Intestate sucession
spouse is entitled to all of a testator’s separate property if the testator didn’t leave behind any parents or issue, 1/2 of the testator’s separate property if the testator left behind one child, and 1/3 of the testator’s separate property if the testator left behind
more than one child
A writing can be incorporated by reference into a will if
(1) there is a writing,
(2) itexisted at the time of the will’s execution,
(3) it is specifically referenced in the will, and
(4) the testator had the intent to incorporate the writing.
Prima Facie case for Undue influence
V’s vulnerability and whether the influence knew or should have known about the v’s vulnerability
influencers apparent authority
Influence actions or tactics
equity of the result
Statuory Undue Influence is presumed if the
drafter of the will is also the beneficiary of the will
CA Anti-Lapse
which allows for the issue of a kindred beneficiary to take, despite the fact that he or she may have predeceased the testator.
