Wills Flashcards
Choice of Law
A will is valid in CA if it is executed in accordance with:
(1) California law,
(2) law of state where it is executed, or
(3) law of the place of domicile or abode or where T is a national at the time of execution or death.
Will Formation
(1) WRITING
(2) SIGNED by T or on T’s behalf at T’s direction,
(3) signed or acknowledged by T in joint presence of at least TWO witnesses (who witness it),
(4) SIGNED by the Ws during T’s lifetime, and
(5) UNDERSTOOD to be T’s will by the Ws when witnessed.
Harmless Error
If T dies on or after Jan 1, 2009
MAY be admitted to probate if proponent establishes by CLEAR & CONVINCING evidence that at time of signing, T intended instrument to constitute T’s will.
Interested Witnesses
There is a presumption of undue influence as to the excess (more than intestacy)
Gift lapses if proponent doesn’t overcome presumption.
Holographic Wills
Holographic will or codicil requires
(1) T’s signature and
(2) all material provisions to be in T’s handwriting.
Material Provisions
(1) declaration as will;
(2) dispositive clauses (naming of bequests);
(3) naming of executors, trustee, etc.;
(4) attestation clause; and
(5) signature.
General Capacity
T must understand
(1) the nature of the act (of making a will);
(2) the nature and extent of their property/assets; and
(3) the natural objects of their bounty (close family)
(4) plan of attempted disposition.
Common Law Undue Influence
Presumed UI if B
(1) confidential relationship to a T;
(2) participates in some way in “procuring” a gift; and
(3) unnatural bequest
Statutory Undue Influence
Presumed UI if B
(1) an attorney or caregiver,
(2) the drafter of the instrument, or
(3) in a fiduciary relationship with T and transcribes the instrument.
Standard Undue Influence
Absent presumption of UI, challenger to will must show:
(1) there was influence exerted on T;
(2) that overpowers free will and mind of T;
(3) product of influence was will which wouldn’t have been executed but for influence.
Standard UI Factors
(1) susceptibility of T
(2) B’s relationship & opportunity
(3) B’s disposition to influence T, and utilized actions and tactics designed to exert influence
(4) gift to B was inequitable
Fraud
Execution: false representations re the character or content of an instrument
Inducement: false representations concerning facts that influence T’s motivation.
Mistake
Execution: Where there’s mistake in execution as to character of document (thought wasn’t a will), it cannot be probated for lack of intent to create will
Inducement: Where there’s mistake in the inducement (based on a mistaken belief in untrue facts), no relief unless the mistake and the disposition T would have made but for mistake appearing on face of instrument.
Substituted Judgment
Conservator can make a will or trust, or revoke or modify a trust for a conservatee.
Court can only approve SJ:
(1) after noticed hearing, and only if
(2) conservatee doesn’t oppose the proposed act or lacks legal capacity and
(3) conservatee will be adequately provided for notwithstanding the act.
Revocation Methods
Three methods
(1) by a subsequent will;
(2) by a physical act (cancellation, tearing, blotting out, etc.); or
(3) by operation of law
Striking Out Individual Gift
Strike out of individual bequest is effective as to individual bequest. Need to meet formalities to add. But strike out of one numeral ($1,000 > $100) is permitted.
Revival
Where Will 2 revokes a Will 1, and then Will 2 is itself is revoked by physical act, Will 1 is revived if T’s intent to do so is shown by
(1) the circumstances of the revocation or
(2) from T’s contemporaneous or subsequent declaration.
Can use Extrinsic Evidence to show intent.
Will 2 Revoked By Will 3
provisions of Will 1 only given effect if Will 3 actually republishes those provisions of Will 1 or otherwise explicitly states Will 1 is revived.
no extrinsic evidence
Dependent Relative Revocation
Rule of 2nd best.
When T revokes part/all of will on mistaken belief that NEW disposition, made concurrently, is valid, court will give effect to revoked portion if it is consistent with what the court determines was testator’s intent.
(Revocation and making of new disposition must be simultaneous.)
Codicil
Codicil amends prior will, requires same formalities as will. Codicil is admissible to probate by itself and republishes the date of the will.
Integration
The will consists of all papers or writings
(1) actually (physically) present at the time of execution of will and
(2) that T intended to constitute her will.
Presumed when physically connected OR internal sense of connectedness.
Incorporation by Reference
Separate writing may be incorporated into will by reference if
(1) incorporated writing is in existence as of execution date of will,
(2) will shows T’s intent to incorporate writing, and
(3) writing sufficiently described in will.
Acts of Independent Significance
Court may resolve ambiguity in will by referring to documents or acts effectuated during T’s lifetime, so long as docs/acts are created/done for non-testamentary purpose
Ambiguity & Extrinsic Evidence
Extrinsic evidence is admissible to explain any ambiguity in the will – latent (not on face) or patent (on face).
EE is not admissible to show a will has a meaning to which it is not reasonably susceptible.
Specific Legacy
A specific legacy is a gift of a particular item of property distinct from all other objects in T’s estate
General Legacy
A general legacy is a gift of general economic benefit (e.g., cash), payable out of the general assets of the estate.
Stock is considered general unless it says “MY” stock or its in a close corp
Increase/Accretion
Applies where specific gift increases in number or amount. Majority/CA rule is that increase of specific gift goes to beneficiary of specific gift.
Ademption
Extinction: Occurs when specific gift is no longer owned by T at time of T’s death.
Satisfaction: T gave be a subsitute during T’s lifetime.
Simultaneous Death
If T and B die simultaneously, or it can’t be determined which one died first, B is deemed to predecease T, unless you have C&C evidence B did not.
Lapse
If B predeceases T, the gift lapses and goes into residue, and to intestacy if already in residue.
Anti-Lapse
Anti-lapse statute applies if predeceased B
(1) is kindred of testator/trustor or testator’s/trustor’s (dead or ex) spouse or domestic partner (spouse is not kindred); and
(2) left issue surviving them.
Anti-lapse does not apply if will evidences a contrary intention.
Surviving spouse, no surviving family
If decedent leaves no issue, parent, sibling, or issue of a deceased sibling, then surviving spouse, if any, gets the decedent’s share of the CP, and all decedent’s SP.
Surviving spouse and family
(1) spouse gets 1/3 of SP if more than one child, at least one child and one issue of a deceased child, or more than one issue of a deceased child;
(2) spouse gets 1/2 of SP if only one child, only one issue of deceased child, or no children but one parent or issue of parent
Modern Per Stirpes
Lineal descendants take per capita by right of representation (modern per stirpes).
Go to first living in next generation, and then split per those alive, or leavin gissue.
Pretermitted Spouse
Spouse omitted from premarital will receives spouse’s intestate share of T’s estate unless
(1) omission intentional as shown in will (express language),
(2) spouse provided for in transfers outside will (e.g., prenuptial agreement), or
(3) spouse made valid agreement waiving spouse’s interest in decedent’s estate.
Pretermitted Child
Child omitted from pre-birth will (child born after will) receives intestate share unless
(1) omission was intentional as shown in will,
(2) child provided for in transfers outside will, or
(3) T had other children and left their estate to parent of omitted child.
Bars to Succession Checklist
(1) Slayer Rule
(2) Elder Abuse
(3) Unsuccessful Will Contest
