Wills Flashcards
(35 cards)
Requirements of a Valid Will
- Legal Capacity (18 years or older)
- Testamentary Capacity
- Testamentary Intent
- Formalities
- attested (witnessed)
- holographic (T’s handwriting)
Testamentary Capacity
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)
Testamentary Intent
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)
Formalities of Attested Wills
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
Attestation (Witnessing)
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)
Interested Witnesses
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
Holographic Wills
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.
Ademption by Extinction
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.
Ademption by Satisfaction
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
Abatement
Process of reducing testamentary gifts in cases where estate assets are insufficient to pay all claims and satisfy all bequests.
Anti-Lapse Statutes
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
Ambiguities
Patent (obvious) and Latent (hidden) - courts will consider extrinsic evidence to resolve the ambiguity.
Incorporation by Reference
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
Acts/Facts of Independent Significance
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)
Separate Writing Disposing of Tangible Personal Property
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
Conditional Wills
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
Codicil
Modifies will and msut be executed with the same formalities.
Republication by Codicil
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
Pour-Over Gift to Inter Vivos Trust
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.
Integration
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.
Omitted Spouse
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)
Divorced Spouse
Unless will expressly provides otherwise, if after executing the will, T gets divorced, any disposition of property to former spouse is revoked.
Pretermitted/Omitted Children
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
Revocation by Physical Act
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
