Wills

Question 1

Who Raises Contruction & Interpretation Issues?

Answer 1

1. Personal Representatives: reps who want to do the right thing and avoid liability for improper administration, OR
2. Beneficiaries: those who would take under the various interpretations

Question 2

Basic Construction Maxims

Answer 2

1. The fact that a testator left a will (especially if it has a residuary clause) indicates an intent not to die intestate,
2. Among two or more contradictory provisions in a will, the last one will prevail.
3. A will is constructed as a whole; no interpreting provisions in isolation.
4. A court must give effect to all words in a will.

Question 3

Patent Ambiguity

Definition and Interpretation

Answer 3

Patent Ambiguity = a provision is vague on its face and fails to convey a sensible meaning.

• Interpretation: the court will consider extrinsic evidence to resolve the ambiguity, however extrinsic evidence cannot be used to fill in blank spaces or supply omitted gifts.

Question 4

Latent Ambiguity

Definition & Interpretation

Answer 4

Latent Ambiguity = a provision conveys a sensible meaning on its face but cannot be carried out without specific clarification.

• Interpretation: the court will consider extrinsic evidence to resolve the ambiguity.

Question 5

Incorporation by Reference

Definition, Effect

Answer 5

What Is? - Instead of writing something in a will, a testator may incorporate another document into the will by reference.

Effect? - the incorporated material is treated as if it were actually written out in the full will.
* Does not matter if the document is not legal, lacked witnesses, or is unsigned.

Question 6

Elements of Incorporation by Reference

Answer 6

A will may incorporate the contents of a separate writing by reference, even if the requirements
for integration are unsatisfied, if:

1. The will manifests the testator’s intent to make the document a part of the will,
2. The will describes the document sufficiently to permit its identification, AND
3. The document existed when the will was executed

Question 7

Incorporation by Reference of Holographic Wills

Answer 7

Holographs can incorporate by reference printed or typed matter; a holographic codicil can incorporate a defectively executed typewritten will.

Question 8

Acts or Facts of Independent Sigificance

Answer 8

Fact/Act of Independent Significance = action outside of the will with a legal purpose other than disposing of property at death.

• Rule: If something is an act or fact of independent significance, then it need not be executed with the formalities of a will to impact the transfer of property at death.

Question 9

Intestate Succession

Answer 9

A person who dies without a will or a valid will dies intestate.

Intestate Succession = a legal process that comes into play when someone passes away without leaving behind a valid will or other legally binding document dictating how their assets and property should be distributed.

• The distribution of assets is determined by the laws of intestacy in the state where the person passed away.

Question 10

Per Capita Distribution

Answer 10

those in the
same generation always inherit the same amount.

Question 11

Will Validity Requirements

Attested Will

Answer 11

a valid will must:

Four Requirements for Valid Will:
1. Legal Capacity
2. Testamentary Capacity (sound mind)
3. Testamentary Intent
4. Formalities [Attested (witnessed); Holographic (entirely in testator’s handwriting)]

Question 12

Holographic Will

Definition & Requirements

Answer 12

Holographic Will = unwitnessed wills.

Requirements
1. Writing: the will must be in writing.
2. Handwritten: the testator must have handwritten the material portions of the will
3. Signature: the testator must have personally signed the will.

Question 13

Revocation by Physical Act

Answer 13

A will or codicil can be revoked by burning, tearing, canceling, obliterating, or destroying with simultaneous intent to revoke.

Revocation by Another Party: Where revocation is performed by another person, destruction must take place in the presence of the testator and at the testator’s direction.

Question 14

Requirements for Revocation by Physical Act

Answer 14

Intent to revoke
Mental capacity
Physical act

Question 15

Partial Revocation by Physical Act

Answer 15

Under California Law:

• Revoking individual gifts permitted
• Cannot increase gifts

Question 16

Separate Writing Disposing of Personal Tangible Property

Rule

Answer 16

Rule: A testator may dispose of items of tangible personal property in a writing that does not comply with the require¬ments for incorporation by reference if:

1. An unrevoked will refers to the writing,
2. The document is dated,
3. The document is either handwritten or signed by the testator, AND
4. The document describes the items and the recipients with reasonable certainty.

Question 17

Testamentary Capacity

Rule

Answer 17

Testamentary Capacity = the sound mind requirement

Rule: the testator must:

1. UNDERSTAND the nature of the act (e.g., must understand the effect of executing a will)
2. KNOW the general nature and extent of property (basic understanding of assets owned)
3. RECOGNIZE natural objects of their bounty (e.g., T knows who the beneficiaries are)

Question 18

Witness Requirements for Attested Wills

Answer 18

A witness to the execution of a will must:

1. Know the document is a will,
2. Be present when testator signs or acknowledges signature, AND
3. Sign during testator’s lifetime.

Question 19

The Slayer Rule

Answer 19

Rule = an individual who feloniously and intentionally kills the decedent or who is convicted of committing abuse, neglect, or exploitation with respect to the decedent forfeits all benefits with respect to the decedent’s estate.

Question 20

Republication by Codicil

Answer 20

Rule = a codicil acts to republish the will except for the parts of the will that are inconsistent with the codicil.

• The will and codicil are treated as one instrument speaking from the date of the last codicil.
• This date may be important, for example, for purposes of determining whether a child was born after the will’s execution for purposes of the omitted child statute.

Question 21

Omitted Children Rule

General Rule

Answer 21

Rule = if a decedent fails to provide for a child born or adopted after the execution of all testamentary instruments, the child receives an intestate share of the property.

Requirements to Receive Forced Share: the child must be:

1. Born or adopted after the execution of all testamentary instruments
2. Alive when the will was executed but thought to be dead, OR
3. Unknown to the testator because the testator was unaware of the child’s birth (because, for example, the child was the product of an affair or one night