Wills Flashcards
Which of the following persons may NOT inherit as a surviving spouse?
1) Separated spouse who has filed for divorce
2) Registered domestic partners
3) Cohabitating partners
4) Legally married spouse
Cohabitating partners
In order to inherit, by how many hours must an individual survive the decedent?
120
True or False: When there are inconsistencies between a will and a subsequent codicil, the will controls.
False
When is the introduction of extrinsic evidence to aid the court in interpreting a will forbidden?
To prove the plain meaning of words on the face of a will
Regarding undue influence, which of the following elements need NOT be established?
1) The testator must have been susceptible to being influenced
2) The influencer must have had the intent to deceive the testator
3) The influencer must have had a motive to influence the disposition
4) The undue influence must cause the challenged disposition
The influencer must have had the intent to deceive the testator
When a decedent dies intestate and is survived by a spouse, one child and one parent, the surviving spouse is entitled to all of the community property and ________ of the separate property
one-half
True or False: Regarding a surviving spouse, if a marriage or partnership occurs after the will is executed, the omission is treated as a partial revocation
True
What is the correct order of abatement?
Residuary bequests, general bequests to non-relatives, general bequests to relatives, specific bequests to non-relatives, specific bequests to relatives
What does a valid attested will require?
Testamentary intent, capacity, and that will formalities be met.
Wills formalities require a writing that the testator signed with present testamentary intent in the joint presence of two witnesses, and that both witnesses understood the significance of the testator’s act.
What is the substantial compliance (harmless error) approach to determining the validity of a will?
CA specific - Under this approach, a 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.
For CA, does a holographic will need to be dated?
No. But it must be clear that the document was intended to be a will.
What is testamentary capacity?
Sufficient mental capacity to (1) understand the nature of the act, (2) understand and recollect the nature and character of her property, or (3) remember and understand her relationship to living descendants, spouse, parents, or those affected by her will.
How can proof of lack of capacity be shown?
By a deficit in alertness and attention, information processing, thought processes, or ability to modulate mood.
What is an insane delusion?
A belief for which there is no factual or reasonable basis, but to which the testator adheres despite all reason and evidence to the contrary. A belief is an insane delusion if a rational person in the testator’s situation could not have come to the same conclusion. In addition, must be shown that the delusion was the sole cause of the testamentary disposition.
What is the division process of per stirpes?
The estate is first divided into the total number of the ancestor’s children who survive or leave issue who survive. They then take in equal shares.
