Wills Flashcards
California Will Validity
A will is valid if it is valid under CA law 2) the law of the state where executed or 3) law of the state when the Testator is domiciled
Formal will - elements
A lawfull will requires 1) a writting 2) signed by the T with capcity 3) signing was witnessed by 2 disinherited indiviuals present at the time of the settlor’s signature 4) witnessed during the T’s lifetime 5) an understanding that they are signing the T’s will
As of 1/2009, if a will fails a witnessing requirements what type of evidence do you need to show to validate the will?
clear and convincing evidence of the T’s intent may still validate the will
Holographic will
CA recognizes holographic wills, which require a T to 1) intend the doc to be a will 2) have capcity (18 years and sound mind 3) handwrite the material provisions 4) sign
Holographic wills do not need
witnesses
Testamentary capcity
A t must be
1) at least 18 years old and intent to create a will
2) understand the nature and extent of their property
3) understand the natural objects of their bounty (ie realtives and friends)
Appointment of a converstator alone
does not prove a lack of capcity
Lack of capcity - When a T is found to lack capcity, their entire will
is invalid, resulting in intestate sucession. Capcity is evaluated at the time of execution
Exception to lack of capcity
if there was a prior valid will, it is not affected by the invalid will.
Insane delusion
When a T forms a belief for which there is no factual basis but adheres to despite all reason and evidence to the contrary. An insane delusion sets aside a will if it is the cause of a will creation
Dependent relative revocation
Cancels a revocation that was made under a mistaken belief of law or fact by the T. Doctrine applies when the T would not have revoked his orginal will but for the mistaken belief that subsequent will they prepared would be valid
Valid Revocation - 3 ways
subsequent instrument
physical act
lost
Valid Revocation - Operation of law
when a will is made naming a spouse as a divisee, but then the couple divorces. Divorce revokes the former spouses gift
An act by the T that would revoke the will
A T may make an overt act to revoke the will such as drawing a line through it or tearing it up. Even if only one copy is torn or marked, the act will have the effect of revoking all the copies
Pretermitted Child
In California, a child born or adopted after the execution of a will or revocable trust, the child receives an intestate share of the estate unless: 1) child was intentionally provided for outside the will; 2) when the will was executed the testator left all of most of the estate to a different parent of a different child; or 3) the decedent intentionally did not provide for the child.
Per capita distribution
In CA if the surviving issue are all of equal degree of kinship, then the property passes per capita. If they are of unequal kinship and the decedent dies intestate or does not specify otherwise, per capita with representation is used.
Intestate succession for CA
CA intestate scheme divides an intestate estate evenly at the first generation there is a live taker
Per capita with representation
Per capita with representation representation divides the property at the first generation where there is at least one survivor, with pass through if pre-deceased.
Integration
All papers are integrated into a will if 1) the papers are actually present at the execution; and 2) the testator intends the papers to be a single will by a physical connection.
incorporation by reference - A separation document may be incorporated into a will by reference if the document is
1) in existence at the date of the will; 2) intended to be incorporated; 3) described in the will; and 4) proven to be the document described.
Pour-over will
A valid will which pours over the estate of the decedent upon his death into a trust is a pour-over will. Here, the trust must have been in existence at the time the pour-over will was executed.
Modification by codicil
A codicil is an instrument made after a will is executed that modifies, amends, or revokes a will. A codicil must satisfy the same formalities as a will. Execution of a codicil republishes the will, meaning courts will consider the original will to have been executed on the same date as the codicil.
Ambiguities
During probate, a court will consider extrinsic evidence to clarify ambiguities.
revocation by subsequent will or codicil
Revocation of a formal will can be done by executing a subsequent valid will or codicil. A will can also be revoked by physical act, such as burning or tearing. Duplicate copies of that will are also considered destroyed when the testator destroys one copy.
revocation by divorce
In California, a divorce renders all gifts to previous spouses as revoked.
Interlineation
Occurs when a testator attempts to modify a gift in his will by writing over the devise and attempting a modification. This change requires it be in the testator’s own handwriting and signed. Generally, a devise cannot be increased, and an attempt to decrease will result in an interpretation by the court that the gift is void.
Community property state implication
– As California is a community property state, when a spouse dies with a will, they may transfer ½ of community property and all of their separate property by will. The surviving spouse owns the other half of community property.
Disinterested witness
A will is only valid if it is signed by the testator in the presence of two disinterested witnesses. Any such gift to an interested witness is presumed invalid– a witness will only take their intestate share if they can rebut this presumption.
CA witness rule
In California, a will must be signed in joint presence of and attested by two witnesses. They don’t need to read the will, just need to know it’s a will.
Fraud
A will is fraudulent if a person 1) intentionally made a misrepresentation; 2) of material fact; 3) in order to get testator to sign; 4) and the testator did so.
Fraud in the execution
If a forger signs the will it will be deemed invalid, and the property passes by intestate succession.
Fraud in the inducement
Occurs when a wrongdoer’s representations affect the contents of a will. Only that portion of the will affected by fraud will be invalidated.
Fraud in preventing the T from revoking
If this occurs, a court will not allow the will into probate and the testator’s property will pass via intestacy rules.
Undue influence (DEF)
exists when a person exerts influence that overcomes a testator’s free will.
Undue influence elements
1) testator susceptible to influence; 2) wrongdoer had access and opportunity; 3) wrongdoer took an action to influence; and 4) there was an unnatural result.
CA Statute of Undue Influence
Occurs if the testator makes a donative transfer to 1) the person who drafted the will; 2) a care custodian of a testator who is a “dependent adult”; 3) a person in a fiduciary relationship with the testator; 4) a person who is a spouse, domestic partner, employee, or is related by blood to a person in one of the previous three circumstances; or 5) a partner, shareholder, or employee of the law firm in which a person who drafted the will or one in a fiduciary relationship with the testator has an ownership interest.
CA presumption of Undue Influence for witnesses
If the beneficiary is also a witness, and there are not at least two other disinterested witnesses, undue influence will be presumed.
Intestate distribution
The surviving spouse gets all community property and quasi community property, as well as all separate property if the decedent left no issue, parent, brother, sister or issue of a deceased brother or sister; or, the surviving spouse gets ½ separate property if the decedent left one child or grandchild; or the surviving spouse gets 1/3 separate property left two or more children. All that remains is distributed equally if the same kinship, or per capita distribution otherwise.`
Lapse of gifts
If a beneficiary dies prior to the testator, the gift lapses and returns to the estate. California has an anti-lapse statute that provides the gift will not lapse and will instead pass to the beneficiary’s issue.
Anti-lapse statute
requires that 1) the decedent died with issue; 2) the decedent is related to the testator; and 3) there is no contrary intent by the testator.
Revival
A previously revoked will may be revived if it is evident from the testator’s contemporaneous or subsequent declarations that the testator intends the previous will take effect as executed, or to the extent it appears from the terms of a later will, the testator intends the previous will take effect.
Revival of a revoked will
A will revoked by physical act will be revived if the testator demonstrates intent to revive. A revoked will is revived by republishing a subsequent will that complies with formalities.
Widow election
When a spouse dies and leaves community property to another, the surviving spouse can elect to take her share of the community property or her devise under the will. (A widow has to select, likely to choose whichever leaves her more – intestate distribution or the will).
residual estate
The residue of an estate is what remains after all other gifts from the testator’s will have been honored.
class gifts
When a gift is given to a group of people rather than one person, a class gift is issued. If one member of the class predeceases, their issue does not receive the gift, but instead it is shared within the class.
No surviving issue
If the testator leaves no issue, their estate passes to the nearest generation equally, in order: parents; parent’s issue; grandparents; then grandparent’s issue.
Per stripes (Branch) distribution
In a per stirpes distribution, the estate is distributed equally among beneficiaries. If a beneficiary predeceases the testator, that beneficiary’s share passes to their surviving descendants. (3 children, one dies, two get 1/3 each, issue of the third child split his 1/3rd)
Intestacy
In California, intestacy statutes use modern per stirpes – the residue of the estate is divided equally among the first generation of living heirs.
Living child intestate share
Under California law, if the decedent dies without a surviving spouse or domestic partner then the intestate distribution is first to issue in any generation. If no issue survives, the estate passes to parents.
General gift
A general gift is a non-specific gift satisfied from any of the funds remaining in the estate.
Specific gift
A specific gift is one that is specifically identified, such as real or personal property.
Demonstrative gift
gift of a specified amount from a specified asset.
ademption by extinction
A specific gift adeems by extinction if the testator does not own it at the time of death. This does not apply to general gifts. In California, a specific gift is adeemed only if testator intended the gift to fail.
residuary legaatee
The beneficiary who received the residual estate.
Abatement
the process of reducing gifts when assets are insufficient. Gifts abate in order: residuary, general then specific. Gifts within a specified class abate equally.
Adopted child
Adopted children inherit from their parents as if they were natural born children.
Omitted spouse
The distribution for an omitted spouse is ½ decedent’s community property and quasi community property. If the will was executed before marriage, the spouse will receive an intestate share. The spouse does not receive a share if intentionally omitted, given property outside the will, or if in line with a prenuptial agreement.
Pre-martial agreements
agreement allows parties to contract outside of community property laws and is valid if in writing and signed by both parties.
when are pre-martial agreements not valid
if 1) involuntary (a party is not represented by independent legal counsel, a party didn’t have at least 7 days to review the agreement, a party was not fully informed in a language they understand; and the agreement was executed under duress, fraud, undue influence or lack of capacity) 2) unconscionable (terms are unfair or party did not understand the other party’s property) or 3) it encourages divorce.
Living child
In California, upon a testator’s death, if the testator failed to provide for a living child solely because the decedent believed the child to be dead or was unaware of the child, the child receives an intestate share.
non-martial children
These children do not inherit through their father unless 1) there is a subsequent marriage of parents; 2) there is an adjudication of paternity during father’s life; 3) clear, convincing proof of paternity is provided after the father’s death.
Omitted child
A child that is not mentioned in a will that was executed after the child’s birth or adoption is presumed to have been omitted accidentally, and is entitled to an intestate share, unless 1) provided for outside the will; 2) decedent left the estate to the parent of other children; 3) the failure to provide for the child was intentional.
pretermitted spouse
One omitted from the will, provided the couple married after the execution of the instrument. Entitled to their intestate share of the community property and separate property of the decedent unless intentionally excluded or provided for otherwise.
testators gift of community and separate property
A testator may only gift his share of the community property, as well as any separate property they own.
Substantial compliance - CA rule
will that falls short of the required formalities will be treated as if it had done so if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended that the will constitute the testator’s will.
Mental disorder
A testator also lacks testamentary capacity if she suffers from a mental disorder involving delusions or hallucinations that results in her devising property in a way that she would not have done but for the delusions or hallucinations.
