Wills

Question 1

Requirements of a Valid Will

Answer 1

1. Legal Capacity (18 years or older)
2. Testamentary Capacity
3. Testamentary Intent
4. Formalities
   - attested (witnessed)
   - holographic (T’s handwriting)

Question 2

Testamentary Capacity

Answer 2

Mental capacity to make will requires T have the ability to understand:
1. nature of the act (effect of act)
2. nature and extent of T’s property (exact knowledge not needed)
3. Persons who are natural objects of T’s bounty (family members when will executed)

Question 3

Testamentary Intent

Answer 3

T must have present intent to make particular instrument their will.
- ineffective deed will be denied probate even if signed and attested bc of lack of testamentary intent
- Sham wills (executed as joke) are void

Ex: Letter to attorney “Please write my will to leave everything to Bill” (not a will)

Question 4

Formalities of Attested Wills

Answer 4

Must meet formal requirements, otherwise it is void (not voidable) and cannot be admitted to probate unless HE doctrine applies:
1. writing
2. signed by T
3. T must sign/acknowledge in joint presence of 2 Ws
4. 2 Ws must sign will during T’s life, and
5. Ws must understand instrument is T’s will

Question 5

Attestation (Witnessing)

Answer 5

Witness must be competent at time of execution.
- understand doc is T’s will
- signature/acknowledgement must occur in joint presence
- Ws must sign before T dies (need not sign in presence of each other)

Question 6

Interested Witnesses

Answer 6

General rule is will remains valid, but gift is presumed to be acquired through duress, fraud, UI. However, IW can take if:
- IW rebuts presumption
- there are at least 2 other disinterested subscribing Ws, or
- IW who is also heir may receive up to intestate share

Question 7

Holographic Wills

Answer 7

Will in T’s handwriting. Permitted in CA if signature and material provisions are in T’s handwriting.
- Filling in blanks of preprinted form can make will be considered holographic
- Testamentary capacity and intent are required
- Witnesses not required
- Date not required but helpful

ET: handwritten changes after will is complete are given effect.
- in contrast, changes made after execution of attested will are not given effect and may be revocation.

Question 8

Ademption by Extinction

Answer 8

Failure of gift because property is no longer in T’s estate.
- applies only to specific devises and bequests. Bequest is adeemed and beneficiary takes nothing.
- Partial ademption: beneficiary takes remaining portion

In CA, ademption depends on whether T intended to adeem the gift when he disposed of the property.

Question 9

Ademption by Satisfaction

Answer 9

When testamentary gift is given inter vivos to beneficiary (prepayment).
Testamentary gift is satisfied if:
1. T provides for satisfaction in instrument itself or contemporaneous writing, or
2. donee acknolwedges, in writing, that gift is one in satisfaction

Question 10

Abatement

Answer 10

Process of reducing testamentary gifts in cases where estate assets are insufficient to pay all claims and satisfy all bequests.

Question 11

Anti-Lapse Statutes

Answer 11

Statute operates to save gift if predeceasing beneficiary:
1. was kindred of T or T’s spouse, and
2. left descendants who survived T

(Does not apply to predeceasing spouse, even though it does to spouse’s kindred)

Class gifts: only class members who survive T take share, unless AL statute requirements are met

Question 12

Ambiguities

Answer 12

Patent (obvious) and Latent (hidden) - courts will consider extrinsic evidence to resolve the ambiguity.

Question 13

Incorporation by Reference

Answer 13

Instead of writing something in will, T may incorporate an extraneous document into will by reference if:
1. T intends to incorporate
2. Doc was in existence at time will was executed
3. will sufficiently identifies the material to be incorporated

Question 14

Acts/Facts of Independent Significance

Answer 14

Something outside of a will which has a legal purpose other than disposing of property at death. If something is fact of independent significance, then it need not be executed with will formalities.

Ex: gift to “my spouse” (will look outside will to determine spouse)

Question 15

Separate Writing Disposing of Tangible Personal Property

Answer 15

T may dispose in writing that does not comply with requirements for incorporation by reference (not in existence when will executed) if:
1. unrevoked will refers to writing
2. document is dated
3. document is either handwritten or signed by T, and
4. document describes items and recipients with reasonable certainty

Question 16

Conditional Wills

Answer 16

Will which only operates if condition met. Presumption against conditional wills.
- Parol evidence not admissible to show will was intended to be conditional (unlike K’s)
- often difficult to distinguish genuine condition vs motive to make will so argue both ways

Question 17

Codicil

Answer 17

Modifies will and msut be executed with the same formalities.

Question 18

Republication by Codicil

Answer 18

Codicil acts to republish the will except for inconsistent parts. Will and codicil treated as one instrument from the date of the last codicil.
- any alterations to will are ineffective to change will unless reexcuted with proper formalities or changes qualifies as holographic codicil

Question 19

Pour-Over Gift to Inter Vivos Trust

Answer 19

Provision in will making gift to IV Trust. CA permits pour-over of estate assets to IV trust as amended on T’s death if trust is identified in will and terms set forth in a written instrument (other than will) executed before, conccurently or within 60 days after execution.

Question 20

Integration

Answer 20

A will can be written on more than 1 piece of paper. A will consists of all papers that were actually present at time of execution and that T intended to constitute will. All sheets of paper of integrated will are probated as part of T’s will.

Question 21

Omitted Spouse

Answer 21

CA protects spouse’s from being unintentionally omitted from will if T marries after executing will. The surviving spouse may take, in addition to CP share, an intestate share of decedent’s estate (may not exceed 1/2 share of decedent’s SP)

Exceptions:
- intentional omittion
- provided for with nonprobate transfers (with intent that it be in lieu of testamentary provision)
- waiver (signed writing)

Question 22

Divorced Spouse

Answer 22

Unless will expressly provides otherwise, if after executing the will, T gets divorced, any disposition of property to former spouse is revoked.

Question 23

Pretermitted/Omitted Children

Answer 23

T can intentionally disinherit children, but CA have statutes protecting children from being unintentionally omitted. Under the CA statute, if a decedent fails to provide for child born/adopted after execution of all testamentary instruments, child is to receive intestate share.

Exceptions:
- failure to provide was intentional and intent appears on face of will
- decedent provided for child by transfer outside will and intended it to be in lieu of will provision
- when will was executed, decedent had one or more children and devised substantially all of estate to other parent of omitted child

Question 24

Revocation by Physical Act

Answer 24

T can revoke a will by burning, tearing, or destroying it, with the intent to revoke.
- T must be of sound mind
- in CA, will can be revoked in part
- destruction of codicil does not revoke a will, even if T intends, while destruction of will revokes all codicils unless T intends

Question 25

Revocation by Subsequent Will or Codicil

Answer 25

May be expressly revoked if later will/codicil executed with formalities required. Will may be revoked by implications of new instrument.
- If new will completely disposes of T’s property, old will revoked by inconsistency.
- If new will partially disposes of T’s property, old will is revoked as to inconsistent parts.

Question 26

Revival of Revoked Wills

Answer 26

1. If W2 revoked by physical act, extrinsic evidence can prove T’s intent to revive W1.
2. If W2 revoked by W3, W1 not revived except to extent from terms of W3 that T intended W1 to take effect.
3. W1 may also be revived by reexcution or republication by codicil (provided W1 not destroyed).

Question 27

Implied Conditional Revocation (or Dependent Relative Revocation)

Answer 27

T validly revokes W1, T executed W2, but W2 invalid.
Doctrine of DRR applies when T revokes will under mistake belief that another disposition of property would be effective, and but for this mistaken belief, T would not have revoked will. If other disposition fails, revocation also fails and will remains in force.

To determine if DRR applies:
1. was the revocation of W1 impliedly conditioned on validity of W2?
2. Would T have preferred W1 over intestacy?

The more similar the provisions of the 2 wills, the more likely the court will apply DRR.

ET: if W2 is defectively executed, then revocation is also ineffective and no need to apply DRR.

Question 28

Will Contests

Answer 28

Only interested parties have standing to contest a will.
- includes heirs (intestacy) and beneficiaries of prior wils.
- Creditors, executors and trustees are not interested parties.

Must be within 120 days after will is admitted to probate.

Question 29

Insane Delusion

Answer 29

ID is a distinct form of incapacity. Person with testamentary capacity may have ID that can invalidate entire will or portion. ID is a belief in facts that do not exist and no rational person would believe existed.
- must be nexus between ID and property disposition

Question 30

Undue Influence

Answer 30

Person can hound and badger someone to make will but only will be an issue if they have UI. Execution or revocation of will is ineffective to extent it was procured by UI.
To establish UI:
1. influence was exerted on T
2. effect of influence was to overpower the mind and free will of T, and
3. product of influence was will that T would not have executed but for influence

UI can be proven by circumstantial evidence
- note that mere opportunity to exert UI does not show UI was exerted

Question 31

Common Law Rebuttable Presumption of Undue Influence

Answer 31

A presumption of UI, which shifts BOP, arises when:
1. a confidential relationship existed
2. beneficiary actively participated in some way in procuring will, and
3. beneficiary unduly benefits from instrument

Question 32

Statutory Presumption of Fraud or Undue Influence

Answer 32

CA presumes a donative transfer to certain people is the product of fraud or UI, including but not limited to:
1. drafter of the instrument
2. person who transcribed instrument and who was in fiduciary relationship with transferor
3. Care custodian of dependent adult transferor while in care
4. care custodian who married transferor

Question 33

Fraud

Answer 33

A gift resulting from fraud is invalid.
Elements:
1. false representation made to T
2. knowledge of falsity
3. T reasonably believed statement
4. false statement caused T to execute will they otherwise would not have made but for misrepresentation

Question 34

Mistake

Answer 34

Error not caused by evil conduct.
Either (1) T was mistaken as to nature of instrument, (2) T’s mistake in inducement appears on face of the will, or (3) clear/convincing evidence estasblishes will contains mistake in T’s expression of intent and estaslishes T’s actual specific intent.

Question 35

No-Contest Clauses

Answer 35

Provision that would cause beneficiary to forfeit their right to take. Goal is to scare beneficiary who would get more by intestacy into not contesting for fear of getting nothing if contest fails.
A no-contest clause is strictly construed and may be applied only in the following contests:
1. direct contest brought without probable cause
2. claim that transferor does not own property and has no right to transfer
3. Creditor’s claim