Wills Flashcards
Who Raises Contruction & Interpretation Issues?
- Personal Representatives: reps who want to do the right thing and avoid liability for improper administration, OR
- Beneficiaries: those who would take under the various interpretations
Basic Construction Maxims
- The fact that a testator left a will (especially if it has a residuary clause) indicates an intent not to die intestate,
- Among two or more contradictory provisions in a will, the last one will prevail.
- A will is constructed as a whole; no interpreting provisions in isolation.
- A court must give effect to all words in a will.
Patent Ambiguity
Definition and Interpretation
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.
Latent Ambiguity
Definition & Interpretation
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.
Incorporation by Reference
Definition, Effect
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.
Elements of Incorporation by Reference
A will may incorporate the contents of a separate writing by reference, even if the requirements
for integration are unsatisfied, if:
- The will manifests the testator’s intent to make the document a part of the will,
- The will describes the document sufficiently to permit its identification, AND
- The document existed when the will was executed
Incorporation by Reference of Holographic Wills
Holographs can incorporate by reference printed or typed matter; a holographic codicil can incorporate a defectively executed typewritten will.
Acts or Facts of Independent Sigificance
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.
Intestate Succession
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.
Per Capita Distribution
those in the
same generation always inherit the same amount.
Will Validity Requirements
Attested Will
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)]
Holographic Will
Definition & Requirements
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.
Revocation by Physical Act
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.
Requirements for Revocation by Physical Act
Intent to revoke
Mental capacity
Physical act
Partial Revocation by Physical Act
Under California Law:
- Revoking individual gifts permitted
- Cannot increase gifts
Separate Writing Disposing of Personal Tangible Property
Rule
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:
- An unrevoked will refers to the writing,
- The document is dated,
- The document is either handwritten or signed by the testator, AND
- The document describes the items and the recipients with reasonable certainty.
Testamentary Capacity
Rule
Testamentary Capacity = the sound mind requirement
Rule: the testator must:
- UNDERSTAND the nature of the act (e.g., must understand the effect of executing a will)
- KNOW the general nature and extent of property (basic understanding of assets owned)
- RECOGNIZE natural objects of their bounty (e.g., T knows who the beneficiaries are)
Witness Requirements for Attested Wills
A witness to the execution of a will must:
- Know the document is a will,
- Be present when testator signs or acknowledges signature, AND
- Sign during testator’s lifetime.
The Slayer Rule
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.
Republication by Codicil
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.
Omitted Children Rule
General Rule
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:
- Born or adopted after the execution of all testamentary instruments
- Alive when the will was executed but thought to be dead, OR
- 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
