Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Wills and Trusts > Wills > Flashcards

Wills Flashcards

1
Q

How is a will validly executed?

A
  1. Writing
  2. Signed
  3. Witnessed
    - The witnesses observe the actual signature
    - If there is already a signature, the testator points to the signature, then the witness acknowledges the signature.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

The Wills Act of 1837

A
  1. Writing
  2. Signed
  3. Foot or end of the document
  4. By T or another in Ts presence and at Ts direction
  5. Signature made or acknowledged by T
  6. In the presence of 2 or more witnesses
  7. Witnesses present at the same time
  8. Witnesses shall attest and subscribe
  9. In the presence of a testator

*Subscribe means the witness must sign underneath the testator’s signature

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Strict Scrutiny Approach of the Wills Act

A

Every single element of the Wills Act must be met or else the will fails.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What are the Two Definitions of the Presence Requirement?

A
  1. Line of Sight (Old Approach)
    - The witnesses must be able to see the testator sign; there can be no obstruction.
  2. Conscious Presence (Modern Approach)
    - Use all your senses to determine whether or not the signature occurred.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

CPC 6110(c)(1): CA Version of the Wills Act Statute

*This is mainly the witness requirement

A
  1. Writing
  2. Signed by testator
  3. By conservator (an individual under court-supervised conservatorship)
  4. Witnessed
  5. During the testator’s lifetime (before the testator dies)
  6. Two or more witnesses
  7. Witnesses present at the same time (must be present when the testator does his act - the witnesses can sign at any time, not in front of the testator)
  8. Witness signature OR acknowledgment by the testator
  9. Witnesses understand that they are witnessing the testator’s will.

*CA dropped the requirement of signing at the foot or end of the document.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

CPC 6110(c)(2): The Harmless Error Rule

A

If you don’t satisfy the requirements under (c)(1), basically blowing the witness requirements, the court will still validate your will as long as there is clear and convincing evidence that the testator intended that to be their will.

Only applies to witnesses, NOT signatures.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Doctrine of Delayed Attestation (CA acknowledges this approach)

A

As long as the witness’s memory of the events is still vivid and recollection is clear, the witnesses can sign at any time before the death of the testator.

The testator does not need to see the witnesses sign, but witnesses must see the testator sign the will.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What are the ranges for compliance with the Wills Act?

A
  1. Strict Compliance (Traditional Common Law)
  2. Strict Compliance with Flexibility (CA model)
    i. Conscious Presence
    ii. Delayed Attestation
  3. Substantial Compliance (unworkable and replaced with the harmless error doctrine)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What is a signature?

A

Any mark that a testator makes that the testator intends to be his or her signature.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Requirements when a Signature is by a Mark (CA Rule)

A

When there is a signature by a mark, it must satisfy the requirements of CA Civil Code 17:
1. A witness must observe the making of a mark.
2. The witness must then write the name of the person whose mark is evidenced under the mark.
3. The witness must sign and write the witness’s name as the person who undertook the compliance steps.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Self-Proving Affidavit

A

A separate piece of paper you sign as a witness. Under oath, you swear that you signed the will. In probate, the affidavit is sworn in and the witness does not have to come to court.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Ordering of signing under Common Law and CA

A

CL: The testator must sign first
CA: Does not matter who signs first.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Interested Witnesses Under Common Law and Modern Law

A

CL: An interested witness was like having no witness at all and the will will be invalidated.
CA: Courts won’t invalidate a will if there are interested witnesses, but we will prevent the interested witness from taking under the will.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What happens if you are a family member witnessing the will?

A

We will give you what intestacy gives you and will purge the excess that the will gives.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What does not create a conflict of interest for witnesses?

A

When the will gives you less than intestacy does.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

CPC 6112: Interested Witnesses

A

CA rejects the old CL rule and we do not invalidate a will because there are interested witnesses.

  1. Any person competent to be a witness may be a witness to a will
  2. Will is not invalid when signed by an interested witness as long as there are at least 2 other disinterested witnesses.
    (i) If there are no 2 disinterested witnesses, then a will that makes a devise to an interested witness creates a presumption that the witness was a bad actor. The presumption does not apply when a witness is a person to whom the devise is made solely in a fiduciary capacity.
    (ii) if the witness fails to rebut the presumption that they are a bad actor, then the excess is purged.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What happens if you don’t comply with the will requirements under 61110?

A

Then your only other option is to go to 6111 (holographic will)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

CPC 6111: Holographic Will Requirements

A
  1. Signature (does not need to be at the end of the will) and material provisions must be in the testator’s handwriting
  2. No witnessing requirement
  3. Must show testamentary intent
    (i) can be either in the testator’s own handwriting or as part of a commercially printed form. Not limited to only these forms because you can use extrinsic evidence under 6111.5
  4. No requirement under CA for the holographic will to be dated. If the omission of a date results in doubt, then the HW is presumed to be invalid UNLESS the time of the will’s execution is established to be after the date of execution.
    (i) Look for inconsistent provisions and which instrument was later in time. When in doubt, the latter instrument is the controlling one.
    (ii) If it is established that the T lacked capacity at any time during the period of time the will might have been executed, then there is a presumption that the will is invalid UNLESS it is established that the will was executed at a time the T had capacity.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What are considered material provisions for holographic wills?

A

Things like who gets what, naming the executor, words of revocation in a secondary document, beneficiaries, etc.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

CPC 6111.5: Extrinsic Evidence

A

Extrinsic evidence is admissible to determine whether a document constitutes a will pursuant to 6110 or 6111 or to determine the meaning of a will or a portion of a will if the meaning is unclear.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What are the two kinds of wills?

A

Formally attested wills and holographic wills - both have the same legal impact

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What are the two ways to revoke a will?

A
  1. Writing
    (i) You can only revoke a valid will with another valid will.
    (ii)Can be either expressly revoked or inconsistency (ex: if 2nd instrument is inconsistent with the 1st)
    (iii) Can either be revoked in whole or part
  2. Physical Act: tear it up, burn it, cross it out with a pen. etc. Destruction must be intentional.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What is a codicil?

A

An instrument that in some way modifies, amends, or somehow revokes an earlier instrument.

A partial revocation by writing.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

CPC 6120: Acts Constituting Revocation

A

A will can be revoked in writing in whole or part, expressly or by inconsistency; OR

By physical act (someone else can also revoke your will for you in your presence at your direction)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What happens when we can’t find the will after the death of the testator?

A

Courts will either apply the presumptive revocation doctrine or the lost will doctrine.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

CPC 6124: Presumption Revocation Doctrine

A

If we can’t find the testator’s will at death, then we presume they did not want us to find it, thus it is presumed to be revoked. This can be rebutted.

The presence of a duplicate will prevents the revocation doctrine from applying unless there is affirmative evidence of the revocatory act being done by the testator.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Lost Will Doctrine

A

We don’t presume you destroyed or revoked the will. If we can prove what the term of the will were with sufficient evidence, then we will recreate the will and allow it to be probated.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Differences between a will and a codicil?

A

The document that contains the residuary will be the will.

You cannot revoke a codicil without an underlying valid will.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Does revoking will revoke all codicils to that will?

A

Yes.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

What happens when you revoke a codicil to the will?

A

It only revokes the codicil and not the entire will or other codicils to that will that may be present.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

What are the 3 types of gifts made in a will?

A
  1. Specific bequest
    (i) a gift of a specific item that you own that could be identified with certainty.
    (ii) Modifiers “My…”
  2. General Bequest
    (i) usually a gift of cash; represents something that is not really unique
    (ii) A subset of this is a determinative bequest, where you identify a specific source from which the general bequest will be satisfied
  3. Residuary Bequest
    (i) Everything that is left over; usually the biggest bequest
32
Q

Can you revoke an original will by destroying a copy of that will?

A

No.

33
Q

What are the 5 types of revocations?

A
  1. Writing
  2. Physical act
  3. Presumptive Revocation
  4. Revocation by Operation of Law
  5. Omitted Children and Omitted Spouses (has the effect of a partial revocation)
34
Q

Partial Revocation By Physical Act

A

Ex: What if the will has many provisions and only one portion of the will has been marked through and initialed?

CL Approach: Partial revocation by act is not permitted because of the violation of the Wills Act formalities. The revocation is ignored and the court will give effect to the will as originally written.
CA Approach: Partial revocation by act is permitted, but the revoked gift falls into the residuary, but the partial revocation cannot increase a gift outside the residuary.

35
Q

CPC 6122: Revocation by Operation of Law: Dissolution of Marriage or Annulment

A

The presumption that divorce automatically and irrebuttably revokes all provisions in a T’s will in favor of the ex-spouse UNLESS the will provides otherwise.
(i) If not rebutted, we treat the ex-spouse as having predeceased
(ii) Only applies to the ex-spouse, does not apply to the ex-spouse’s issue if the language expressly designates the ex-spouse’s issue

But if T remarries ex-spouse then the provisions of the will are revived.

36
Q

CPC 5600: Applies revocation by operation of law to non-probate transfers

A

This does not apply if:
(i) Irrevocable transfer/trust
(ii) Clear and convincing evidence that the T intended to preserve the non-probate transfer
(iii) Court order to maintain non-probate transfer
(iv) Life insurance policy (Must be changed according to insurance company policies)

37
Q

What are the 2 approaches when a couple gets divorced in terms of how the testator’s property gets distributed under the will?

A
  1. Strict/Broad Approach: The divorce strikes out the entire family.
  2. CA/Narrow Approach: The divorce only severs ties with the ex-spouse.
38
Q

Omitted Children and Omitted Spouses

A

Gives the new spouse or child a share of the T’s property.

Presumes that if T got married or had children after executing the will, then we presume that T wanted them to be included. It was an accidental disinheritance.

May reduce or eliminate some of the gifts already made in the will.

39
Q

Doctrine of Revival

A

Requirements:
1. Valid revocation
2. Show that we will revive if there is intent to revive
3. What evidence? it depends:
(i) If revocation is by writing (a new will) we must look for the intent in terms of the new will. This is the only place we will look.
(ii) If the revocation was by physical act, then we will look to anything, even contemporaneous oral statements.

40
Q

Doctrine of Integration

A

All papers physically present at the time of execution, intended to be a part of the will, are integrated into the will.

Typed materials cannot be integrated into a holographic will, because material provisions are not in the T’s handwriting.

This is not a will expanding doctrine.

41
Q

What are the 3 types of will-expanding doctrines?

A
  1. Republication by Codicil
  2. Incorporation by Reference
  3. Acts of Independent Significance
42
Q

Doctrine of Republication by Codicil

A

Codicils are deemed to republish, reaffirm, and redate the underlying will.

The underlying will must be validly executed to be republished by the codicil. Codicil cannot republish something that was never valid.

Can cure some defects of the underlying will.

43
Q

Doctrine of Incorporation by Reference: CPC 6130

A

A valid will can incorporate by reference a document that was not executed with the Wills Act formalities if:
1. WIll must express intent to incorporate the other document (low threshold)
2. Will describes the other document with reasonable certainty (low threshold)
3. Writing must be in existence at the time the will was executed (highest burden of proof)

44
Q

CPC 6132: Incorporation of Tangible Personal Property

A

A will may incorporate a document that disposes of tangible personal property that was not otherwise disposed of in the will, EXCEPT for real property, money, and property primarily used in trade or business.

45
Q

What are the requirements for Incorporation of Tangible Personal Property?

A

The writing shows the intent of the testator, is dated and is either signed or in the handwriting of the testator. The writing must describe the items and the recipients with reasonable certainty.
(i) However, if the above requirements are not met, the proponent can still introduce evidence of the testator’s intent to dispose of property using a personal property list.
(ii) The writing does not have to be in existence when the will was executed

46
Q

What are the Limitations of Incorporation of Tangible Personal Property?

A
  1. The aggregate total value of personal property that can be given away cannot exceed $25K.
  2. Does not apply to a single item whose value exceeds $5K.
47
Q

Acts of Independent Significance: CPC 6131

A

A will can dispose of property by reference to acts outside of the will (referenced act can control who or how much a beneficiary takes) as long as the referenced act has significance independent of its effect on the T’s probate estate (inter vivos or non-testamentary significance)
(i) The act itself must have its own independent and non-testamentary purpose and significance apart from its effect.
(ii) Looks to future events that have not happened yet.

Elements broken down: (1) will make reference to an act (2) Identify the independent significance (3) Does the act have significance beyond the effect of the will?

48
Q

What are the 2 types of contracts relating to wills?

A
  1. Contracts to make a will
  2. Contract not to revoke a will
49
Q

What is the issue of contracts relating to wills?

A

Upset beneficiaries that bring claims against T for breach of contract relating to the will are treated as contract claimants (creditors).

Creditors take first before the claimants in intestacy.

50
Q

CPC 21700: Contracts to Make a Will

A

To prove there was a contract either to make a will or revoke a will to die intestate, there must be:
1. Proof of a valid contract
2. Apply contract law, not probate law
3. Writing Requirements
(i) Provisions of the will stating material provisions of the contract OR an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; OR
(ii) A writing signed by the decedent evidencing the contract, OR
(iii) Clear and convincing evidence of an agreement (can be oral) between the decedent and the claimant (or another person for the benefit of the claimant) or a promise by the decedent to the claimant (or another person) that is enforceable.

51
Q

Contract Not to Revoke

A

A contract not to revoke must be done expressly in the will.

Execution of a joint or mutual will does not create a presumption of a contract not to revoke.

52
Q

Capacity: CPC 6100

A

To have capacity, you must be at least 18 years old and of sound mind.

The testator must be capable of knowing and understanding in a general way the following things - does not need to show that they actually understood:
(1) The nature and extent of his/her property
(2) The natural objects of his/her bounty (children, spouse, etc.)
(3) The disposition that he or she is making of that property, and (must know you are making a will)
(4) Must be capable of relating these elements to one another and forming an orderly desire regarding the disposition of property

53
Q

What is the threshold for testamentary capacity?

A

Basic testamentary capacity is a very low threshold. it is rare that a person would not be found competent.

54
Q

When is capacity relevant?

A

At the moment of the execution of the will.

55
Q

What are the 2 ways to challenge a will?

A
  1. Formalities (Wills Act or Holographic Will)
  2. Capacity (fallback)
56
Q

What are the traditional defects to capacity?

A
  1. Insane Delusion
  2. Undue Influence
  3. Fraud
57
Q

What is Insane Delusion?

A

No matter how hard you try, you cannot dissuade a testator from their belief.

58
Q

What is the 2-prong Analysis for Insane Delusion?

A
  1. Must show there is an insane delusion. Under CA: if any factual basis exists to support the T’s belief, it cannot be an insane delusion.
  2. Causation: Under CA, we use the “But for” test. But for the insane delusion, the testator would not have done what they did.
59
Q

What is Undue Influence?

A

When you are trying to get the testator to do something they otherwise would not have done.

Substituted intent: the undue influencer is substituting their intent for that of the testator.

60
Q

What is the 4-factor approach for undue influence under common law?

A
  1. Show susceptibility of the testator
    (i) How susceptible was the testator to the influence of the outside person?
  2. Influencer had an opportunity
  3. Show motive - usually money
  4. Causation
    (i) Show that the three prior elements combined caused the testator to do what he or she did.
61
Q

CA Presumptive Doctrine of Undue Influence

A

Must show:
1. Confidential Relationship
(i) Any relationship in which you express trust with another person with whom you are dealing.
2. Alleged influencer active in the procurement or execution of the will
3. Influencer Unduly Benefits
(i) You get more than you otherwise would have been entitled to take.

If all three are shown, then the burden of proof shifts to the influencer to prove that they did not do it.

62
Q

What is a No Contest Clause?

A

A clause contained in the will that says that if a beneficiary contests the will, they lose the gift given to them under the will.

The general rule is that these clauses will not be enforced if there is probable cause.

63
Q

CPC 21310: Direct Contest

A

Any contest that goes to the very nature of the will itself- execution, capacity, revocation, etc.

Goes to the validity of the will.

64
Q

CPC 21311: Enforcement of No-Contest Clause

A

No-contest clauses will be enforced in these 3 circumstances:
(1) If you bring a direct contest without probable cause
(i) Probable cause exists if, at the time of filing the contest, the facts known to the contest would cause a reasonable person to believe that there is a reasonable likelihood that they will succeed upon further discovery.
(2) Suits re: ownership of property (claims that T did not own property at the time of transfer) BUT will ONLY be enforced IF the no-contest clause expressly provides for that application
(3) Creditor’s claims or prosecution of an action based on it BUT will ONLY be enforced IF the no-contest clause expressly provides for that application.

65
Q

What are the 3 options for contest clauses?

A
  1. You bring a contest and you win.
  2. You bring a contest and you lose, but if you have probable cause for bringing it, then we will not enforce the clause against you.
  3. If you bring a contest, and you have no probable cause, and you lose, then the contest clause will be enforced against you.
66
Q

What are the 2 Types of Fraud?

A
  1. Fraud in the Execution
  2. Fraud in the Inducement
67
Q

Fraud in the Execution

A

The contents of the will were affected by fraud. This occurs when a person tricks another to sign a document that purports to be the signer’s will, but the signer does not realize it, Or, when the T realizes that he is signing his will but the person misrepresents some of the will’s contents.

Either the entire document, portion of the document, or the signature is fraudulent.

68
Q

Fraud in the Inducement

A

When a person is encouraging/inducing the testator to do something they ordinarily wouldn’t do.

The will itself is valid, but the problem is that the intent and testamentary capacity was so affected by the fraud as to make the will invalid.

69
Q

What are the potential remedies for fraud in the execution and fraud in the inducement?

A

The remaining portion of the will stands UNLESS the entire will was affected by the fraud.

70
Q

What is Duress?

A

Duress is when undue influence becomes overly coercive; often physical.

71
Q

Tortious Interference with an Expectancy

A

There must be a tort or fraud to bring this claim.

Elements:
(1) Must prove existence of expectancy (intestacy or will)
(2) Reasonably certain that expectancy would have been realized but for the interference
(3) Intentional Interference with expectancy

When a third party intentionally commits tortious conduct in the testamentary process agaisnt those who would have taken but for the misconduct can sue for tortious intereference with expectancy.

72
Q

Construction of Wills

A

We look to the date of execution of the will to construe it.

Courts are often reluctant to let in extrinsic evidence, which is anything other than will itself.

73
Q

What are the two types of ambiguity?

A
  1. Latent Ambiguity
    (i) Ambiguity is not obvious on its face, so we will allow extrinsic evidence.
    (ii) 3 types of ambiguities: Misdescription Doctrine - the court will wipe out the error or misdescription and see if they can give effect to what is left; Equivocation - there are multiple people for multiple items that fit the description of the will; Persona Usage/Nicknames.
  2. Patent Ambiguity
    (i) Is on the face of the will itself; you see it; extrinsic evidence is not allowed.
74
Q

What is the Common Law Plain Meaning Rule?

A

We will not allow in any extrinsic evidence. If the Court cannot understand the will, then it fails.

75
Q

Doctrine of Dependent Relevant Revocation (revocation based on a mistake)

A

Elements:
(1) Valid testamentary intent
(2) Revocation was based on a mistaken belief
(3) Alternative disposition must be ineffective
(4) To cancel revocation, court must determine if it would be consistent with T’s intent

76
Q

What are the 2 types of revocation based on mistake?

A
  1. External: Deals with the revocation of entire will based on a mistaken belief that other will is valid.
    - Revocation cancelled if the old will carries out the T’s intent.
  2. Internal: Deals with revocation of specific or general gift on mistaken belief that a different gift is valid.
    - Revocation is cancelled if restoring the specific/general gift would carry out T’s intent.

Wills and Trusts (4 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions