Wills Flashcards
Valid Attested Will
A valid attested will requires testamentary intent, capacity, and that wills formalities be met. Wills formalities require a writing that the testator signed with present testamentary intent in the joint presence of two witnesses, and that both witnesses understood the significance of the testator’s act.
Substantial Compliance
Under California’s “substantial compliance” approach, a will that falls short of the required formalities will be treated as compliant if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended that the will constitute the testator’s will.
Valid Holographic WIll
A holographic will is one (1) in which the material provisions are handwritten by the testator and (2) that is signed by the testator. The document need not be dated or witnessed, but it must be clear that the document was intended to be a will.
A pre-printed will form can be used so long as the material provisions (including property to be distributed and intended beneficiaries) are handwritten.
Testamentary Capacity - Generally
To validly execute or revoke a will in CA, the testator must be at least 18 years old and possess a sound mind at the time of execution or revocation.
A testator lacks the requisite mental capacity if she, at the time of execution, lacked sufficient mental capacity to (1) understand the nature of the act, (2) understand and recollect the nature and character of her property, or (3) remember and understand her relationship to living descendants, spouse, parents, or those affected by her will.
If the testator lacked capacity at any time during which the will could have been executed, there is a rebuttable presumption that the will was executed during the period of incapacity.
Testamentary Capacity - Mental Disorder
A testator also lacks testamentary capacity if she suffers from a mental disorder involving delusions or hallucinations that result in her devising property in a way that she would not have done but for the delusions or hallucinations.
Insane Delusion
A testator also lacks testamentary capacity if she suffers from an insane delusion, which is a belief for which there is no factual or reasonable basis, but to which the testator adheres despite all reason and evidence to the contrary. A belief is an insane delusion if a rational person in the testator’s situation could not have come to the same conclusion. The delusion must be the sole cause of the testamentary disposition.
Revocation by Subsequent Instrument
A testator can revoke a will by executing a later will or codicil that partly or completely revokes the prior will. The revocation can be express or implied from inconsistent terms in the subsequent instrument.
Adoption
Adoptions create a parent-child relationship and are treated as a natural relationship for inheritance purposes.
Omitted Child
However, under CA’s omitted child statute, if a decedent fails to provide for a child born or adopted after the execution of the will, the omitted child receives a share equal to that which the child would have received if the decedent had died intestate. This statute does not apply if (1) it appears on the face of the will that the child was intentionally omitted, (2) the testator had other children at the time the will was executed and left substantially all of her estate to the other parent of the omitted child, or (3) the testator provided for the child outside of the will and intended this to be in lieu of a provision in the will.
Per Stirpes
Per stirpes distribution can be used if the will calls for it.
Lapse and Anti-lapse
At common law, if a beneficiary predeceased the testator, then the gift lapsed unless the will provided for an alternate distribution.
However, under CA’s anti-lapse statute, a gift does not lapse if it was made to kindred (blood relation) of the testator (or of his current or former spouse or domestic partner) who predeceased the testator but left issue who survived the testator. Instead, the issue takes the gift.
Ademption by Extinction
The doctrine of ademption applies only to specific bequests in the event that the subject matter of the specific bequest is missing or destroyed.
A specific bequest is a gift of property that can be distinguished with reasonable accuracy from the other property in the testator’s estate.
If the subject matter of a specific bequest is missing or destroyed, then the beneficiary takes nothing—not even the sales proceeds received by the testator.
Avoiding Ademption by Extinction
In California, the testator’s intent at the time she disposes of the subject matter of the bequest is a consideration. Courts tend to avoid ademption by a variety of means—e.g., by classifying an inter vivos distribution as a mere change in form, etc.
If a gift is adeemed, then the beneficiary is entitled only to whatever is left of the specifically devised property or the balance of the purchase price owing from the purchaser of the property.
Devising Joint Tenancy
Joint tenants may make testamentary transfers of their one-half interest, but if they predecease the other joint tenant, there will be no interest to pass to the devisee.
Codicil
A codicil is a supplement to a will that alters, amends, or modifies the will as opposed to replacing it. A codicil must be executed with the same formalities as a will.
