Wills

Question 1

What are the requirements of a valid will?

Also known as “Attested Will”

Answer 1

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.

Question 2

What are the requirements of a holographic will?

Answer 2

Requires:
1. Signed by Testator
2. Material provisions in testator’s handwritting

No date req.; Extrinsic evidence ok to prove intent.

Question 3

Define

An Interested Witness

Answer 3

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.

Question 4

Required capacity for a valid will

Answer 4

1. Testator is 18 years old
2. Able to understand extent of property owned
3. Know who their beneficiaries are
4. Know the nature of the act (capacity)

Question 5

What are the defenses to negate a valid will?

Answer 5

1. Lack of capacity
2. Mental disorder
3. Fraud
4. Undue Influence

Question 6

Define

Mental Disorder

AKA “Insane Delusion”

Answer 6

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.

Question 7

Define

Fraud

Answer 7

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.

Question 8

Name the three types of fraud

Answer 8

1. Fraud in the inducement
2. Fraud in the execution
3. Fraud in preventing revocation

Question 9

Define

Fraud in the Inducement

Answer 9

Inducement requres that the wrongdoers representation effected the contents of the will, but only the affected part is invalid

Question 10

Define

Fraud in the execution

Answer 10

Execution requires the testator’s forged signature or the testator was given a document that he did not believe to be testimentary

Question 11

Define

Fraud in preventing revocation

Answer 11

A misrepresntation or lie leads the testator from revoking the document.

Question 12

Define

Undue Influence

Answer 12

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

Question 13

When will integration of external papers into a will occur?

Answer 13

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.

Question 14

How do you revoke a will?

Answer 14

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.

Question 15

When is a will is revoked by operation of law?

Answer 15

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.

Question 16

Dependent Relative Revocation

Answer 16

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.

Question 17

Define

Facts of Independent Legal Significance

Answer 17

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

Question 18

Define

Codicil

Answer 18

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.

Question 19

What happenes to a revoked codicil?

Answer 19

Revocation of a codicil leaves the remaining will in tact, but revocation of a will destroys all following codicils.

Question 20

Define

Pour-over Will

Answer 20

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

Question 21

What is the validity of an out-of CA will

Answer 21

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.

Question 22

Define

Lapse Statutes

Answer 22

A lapse statute requires that the beneficiary of a will survive the testator

CA does not follow lapse statutes – See: Anti-Lapse flashcard

Question 23

Define

Anti-Lapse Statute

Answer 23

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.

Question 24

Define

Ademption

Answer 24

Ademption applies where a specific gift devised has changed form from that identified in the will, or no longer exists

Question 25

What types of divises (gifts) are there?

Answer 25

1. Specific devise (unique)
2. General devise (payable out of general assets)
3. Demostrative deivse (from a particular source, but if not enough from general property)
4. Residuary devise (all the leftovers)

Courts will extinguish from broad (residuary) to specific.

Question 26

What type of gifts can be adeemed by extinction?

Answer 26

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.

Question 27

What types of gifts can be adeemed by satisfaction?

Answer 27

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.

Question 28

Define

Intestate Sucession

Answer 28

Intestate sucession is when the testator dies without a will.

The order of receipt, if no spouse, is issue > parents > siblings > grandparents > aunts & uncles…

Question 29

What is the distribution per capita?

Answer 29

Per capita is that the issue of the same degree take equally, starting with where there is a living being.

Question 30

What is distribution per stripes?

Answer 30

Per stripes is that there is distribution at the first level, so long as there is issue.

Question 31

How are adopted children treated in a will?

Answer 31

Adopted children and natrual children are treated equally.

Natural parent’s relationship severed at adoption, unless spouse of natural parent adopts.

Question 32

What happens when the testator and devisee die simultaneously?

Answer 32

1. Testator & devisee die simultaneously –> devisee is deemed to predecesase the testator.
2. If Joint tenants –> severs JT and each get 1/2 (no survivorship)
3. If husband & wife –> CP divided in half
4. Life insurance policy –> alternative beneficiary.

The heir must survive for 120 hours to take.

Question 33

Define

Omitted Child

Answer 33

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.

Question 34

What is the exception the the omitted child?

Answer 34

1. When the omitted child was intentionally left out on the fact of the instrument;
2. When the testator had a child and transfrred assets to parent of omitted child
3. Child was provided for outside of testamentary instrument

Question 35

Define

Omitted Spouse

Answer 35

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.

Question 36

What are the bars to sucession?

Answer 36

• Homicide
• Elder abuse
• Fraud

Question 37

What is a waiver under the rights of a spouse?

Answer 37

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.