Wills Flashcards
What are the requirements of a valid will?
Also known as “Attested Will”
Requires:
1. A writing
2. Signed by the testator
3. In the presence of two disinterested witnesses
4. Witnesses sign will with the understanding of testimentary intent
CA: W’s don’t have to sign in presence of eachother, or in presence of T; T doesn’t have to publish that this is his will; W’s can sign anywhere.
What are the requirements of a holographic will?
Requires:
1. Signed by Testator
2. Material provisions in testator’s handwritting
No date req.; Extrinsic evidence ok to prove intent.
Define
An Interested Witness
An intersted witness creates a rebuttalbe presumption that the witness received a testimentary gift by duress, menace, fraud or undue influence.
A witness to a will must be disinterested.
Required capacity for a valid will
- Testator is 18 years old
- Able to understand extent of property owned
- Know who their beneficiaries are
- Know the nature of the act (capacity)
What are the defenses to negate a valid will?
- Lack of capacity
- Mental disorder
- Fraud
- Undue Influence
Define
Mental Disorder
AKA “Insane Delusion”
An individual is not mentally competent to make a will if he sufferes from a mental disorder that results in hallucinations or delusions that cause him to devise property in a strange way.
Define
Fraud
Fraud is the misrepresentation of a material fact, known to be false by the wrongdoer, with the intent to deprive a person of property or legal rights, and does in fact deprive that person.
Name the three types of fraud
- Fraud in the inducement
- Fraud in the execution
- Fraud in preventing revocation
Define
Fraud in the Inducement
Inducement requres that the wrongdoers representation effected the contents of the will, but only the affected part is invalid
Define
Fraud in the execution
Execution requires the testator’s forged signature or the testator was given a document that he did not believe to be testimentary
Define
Fraud in preventing revocation
A misrepresntation or lie leads the testator from revoking the document.
Define
Undue Influence
Undue influence requires
1. Sucesptibility to the influence
2. Beneficiaries had the opportunity to influence
3. the testator left an unnatural gift of the property
4. The beneficiaries were acting in procuring the disposition
Mnemonic: SOUP
When will integration of external papers into a will occur?
Papers are integrated into the will if they were present at the time of the execution of the will and the testator intended them to be part of the will.
Extrinsic evidence is permitted to show intent.
ISSUE SPOT: Integration is at issue anytime there are papers or a refrence to papers/notes outside of the will.
How do you revoke a will?
You can revoke a will by physical act. The act and intent must be simultaneous.
Acts include to: burn, tear, cross out, destory, erase.
A copy of a will that was not destroyed will be deemed revoked.
When is a will is revoked by operation of law?
When the testator has pretermitted a spouse or child (acounted for in other document); or upon final divorce.
The person is automatically cut out of a will.
Dependent Relative Revocation
Dependent relative revocation will disregard a revocation caused by a mistake.
Reqires T to revoke their will in the mistaken belief that a substnatially identical will/codicil effectuates T’s intent
Note: If a second will is invalidated by fraud or execution, then revocation of first will is invalid and first will was never revoked.
Define
Facts of Independent Legal Significance
A will may dispose of property by refrence to acts and events that have independnet legal significance apart from their place in the will.
Example: providing income to someone for life through a trust; Paying employees based on performance
Define
Codicil
A codicil is an amendnet to an exisiting will made by the testator to change, explain or republish his will.
A valid codicli must meet the same formalities of an attested or holographic will.
What happenes to a revoked codicil?
Revocation of a codicil leaves the remaining will in tact, but revocation of a will destroys all following codicils.
Define
Pour-over Will
A pour-over will is when the testator devises all assets into an intervivos trust.
Valid if:
1. trust is identified in the will
2. Terms are set fourth in instrument other than will and
3. the trust was executed cconcurrently or prior to the will execution
What is the validity of an out-of CA will
A will executed outside of CA, but subject to probate in CA, will be valid, so long as it is a valid will under CA law.
Define
Lapse Statutes
A lapse statute requires that the beneficiary of a will survive the testator
CA does not follow lapse statutes – See: Anti-Lapse flashcard
Define
Anti-Lapse Statute
An anti-lapse statute will apply if the predeceased beneficiary is the testators blood relative and leaves issue (heir), then issue will step into the shoes of the predeceased and take under the will.
Limitation: Class gift ends upon death, only alive upon creation take.
Apply for CA law in essay.
Define
Ademption
Ademption applies where a specific gift devised has changed form from that identified in the will, or no longer exists
What types of divises (gifts) are there?
- Specific devise (unique)
- General devise (payable out of general assets)
- Demostrative deivse (from a particular source, but if not enough from general property)
- Residuary devise (all the leftovers)
Courts will extinguish from broad (residuary) to specific.
What type of gifts can be adeemed by extinction?
Specific gifts only.
If testator no longer owns the specific gift upon death, then the gift has adeemed by extinction
The courts will look at the testator’s intent to determine whether the gift adeemes, such that the beneficiary takes nothing
CA: If courts believe testator attempted to trace assets to new devise, will allow the trace.
What types of gifts can be adeemed by satisfaction?
General or Demonstrative gifts
Requires that the will provides for deduction of intervivos gift or the testator provided a contemporanious writing that the gift has been satisfied elsewhere.
Define
Intestate Sucession
Intestate sucession is when the testator dies without a will.
The order of receipt, if no spouse, is issue > parents > siblings > grandparents > aunts & uncles…
What is the distribution per capita?
Per capita is that the issue of the same degree take equally, starting with where there is a living being.
What is distribution per stripes?
Per stripes is that there is distribution at the first level, so long as there is issue.
How are adopted children treated in a will?
Adopted children and natrual children are treated equally.
Natural parent’s relationship severed at adoption, unless spouse of natural parent adopts.
What happens when the testator and devisee die simultaneously?
- Testator & devisee die simultaneously –> devisee is deemed to predecesase the testator.
- If Joint tenants –> severs JT and each get 1/2 (no survivorship)
- If husband & wife –> CP divided in half
- Life insurance policy –> alternative beneficiary.
The heir must survive for 120 hours to take.
Define
Omitted Child
A child born after a testamentary instrument is executed and not provided for, the child will get intestate share plus share of assets in trust.
What is the exception the the omitted child?
- When the omitted child was intentionally left out on the fact of the instrument;
- When the testator had a child and transfrred assets to parent of omitted child
- Child was provided for outside of testamentary instrument
Define
Omitted Spouse
An omitted spouse is a spouse that was married after testamentary instrument executed and not provided for, the spouse will go through CP rules.
Same exceptions as child: intentionally left out, provided for elsewhere.
What are the bars to sucession?
- Homicide
- Elder abuse
- Fraud
What is a waiver under the rights of a spouse?
A voluntary relinquishment of a known right.
Requires:
1. waiver in writing
2. Full disclosure of financials
3. independent review by waiving spouse
Not enforceable if waiver was unconsionable.
