Wills Flashcards
Execution: Attested valid will rule
A valid will must:
- Be in writing
- Signed by testator (or signed by someone else in T’s presence and at his direction), and
- Signed by two witnesses (must know doc is a will and be present at same time to witness T’s signing or acknowledgment of sig)
Substantial compliance (CA)
If will not executed in compliance w law (e.g., witness issues), will can still be executed if proponent can show C&C evidence T intended doc to be his will
Interested witnesses
Witness who has a financial interest in the will is an “interested witness.” - In CA, a will can be valid despite the presence of an interested witness, if proponent rebuts presumption of undue influence (look at outline)
Holographic will
A valid holographic will requires:
- T’s signature
- Material provisions in T’s handwriting
*Does NOT need to be witnessed or dated, just show T’s intent of doc to be a will
Capacity/intent
- Must be 18 years old (legal capacity) and
- of sound mind (mental capacity) to make a will
Mental capacity
Person is mentally competent if, at time he makes will, he understands:
- nature of his testamentary act,
- nature of his property,
- who is receiving the property.
**Triggering fact: drug or alcohol addiction
Mental disorder/insane delusions
Not mentally competent to make a will if
- he suffers from a mental disorder
- that results in hallucinations or delusions
- that cause him to devise property in way he would not have but for disorder.
Conservators
Courts can appt conservators to make wills on behalf of people if court thinks T lacks capacity or is being taken advantage of through undue influence.
**Conservator has duty of care (act as reasonable person) and loyalty (no self-dealing).
No duress, menace, fraud or undue influence
Execution or revocation of a will or part of a will is ineffective if was procured by
- duress,
- menace,
- fraud or
- undue influence.
Fraud elements
- Misrepresentation
- Of a material fact
- Known to be false by wrongdoer
- With intent to deprive a person or property or legal rights
- And does deprive person
Fraud can occur at three points in process (making will invalid)
- Fraud in execution: T does not know he is creating a will or is not told of its contents, or the will is forged by another
- Fraud in inducement: wrongdoer influences T through misrepresentations to include provisions in a will, resulting in only those particular fraudulent provisions being invalid
- Fraud preventing revocation
Undue influence general rule statement (to be followed by applicable CL or CA test)
Occurs when
- mental or physical coercion is exerted by 3P on T
- with the intent to influence T such that he loses control of his own judgment.
Effect: If undue influence is shown, the will may be invalidated in whole, or in part.
Common law undue influence (traditional approach)
A contestant must show four elements (SOUP):
(1) susceptible;
(2) opportunity;
(3) unnatural disposition;
(4) active in procuring
CA statutory undue influence (apply this if exam says Ca law)
Contestant must use four factor test:
(1) V’s vulnerability
(2) influencer’s apparent authority (status as a fiduciary, family member, care provider, health care or legal professional, spiritual adviser, expert, or other qualification)
(3) influencer’s action or tactics,
(4) equity of result
Then ask, is there presumption of fraud or undue influence? First set of presumptions to analyze (CBU)
- existence of confidential relationship between T and B
- B participated in execution of will
- unnatural gift
CA fraud or undue influence presumptions (DOCEP)
- Drafter
- One in fiduciary relationship w/ T when caused it to be transcribed
- Care custodian provided services within 90 days of execution of will
- Employee or cohabitant of any of above,
- Partner or employee of the law firm of the drafter or transcriber.
Exceptions to undue influence presumption (can be rebutted by C&C evidence)
- Blood relative
- Gift 5K or less
- Ind. L reviews instrument and consults T w/o B present
Conflict of laws/choice of laws rule
- If will valid in other state, valid in CA.
- If will NOT valid in other state, valid in CA IF:
- decedent domiciled in CA,
- dies in CA,
- will meets CA requirements
Integration
Will consists of all pages that are
(1) present at time of execution
(2) intended to form part of the will by T
*Extrinsic evidence ok to show integration (physical connection of papers, ongoing language, page numbers indicate they go together)
Incorporation by reference (non-CA)
A writing may be incorporated by reference if (1) it existed at the time the will or codicil was executed, (2) is intended to be incorporated, and (3) is described in the will or codicil with sufficient certainty.
*Can be kind of confusing. The writing sought to be incorporated can be a valid will or codicil satisfying formalities OR a writing that doesn’t satisfy the formalities, but must already be in existence
*Any time you see “refer: language in new will or codicil, think incorp. by ref.
Incorporation by reference (CA)
Writing can be incorporated if:
- Was described in will or codicil,
- Dated in T’s handwriting or signed by T
- Describes items and B’s w/ sufficient certainty
- Each identified item no more than 5K, total value no more than 25K
**Need NOT exist at time of will execution
Note: holographic wills and codicils and incorporation
- A holographic will or codicil can incorporate a handwritten or typed document.
- A validly executed codicil can incorporate an invalid will and make the terms of the will valid.
Acts of ind. legal significance
A will may dispose of property by reference to acts and events that have independent legal significance apart from their effect in the will.
**did T dispose of his prop for another reason other than for will reasons? Aka, enjoyment of company?
**Acts that are unlikely to be motivated by estate planning concerns are permitted to have testamentary effect, even without Wills Act compliance
Ambiguities in will (comes up with AILS)
A court will only look to the will itself to interpret the terms; no extrinsic evidence is admissible.
***However, extrinsic evidence is admissible if a patent or latent ambiguity can be shown.
Codicil rule
Amendment/supplement to an existing will made by T to change, explain, or republish his will (as of date of codicil).
- MUST meet the same formalities of a will or holographic will.
**Exam tip: explain how codicil is changing terms of will and whether codicil executed properly
Cure invalid will effect
A valid codicil executed after the original will cures any problems that existed at the execution of the original will, including an interested witness.
**The interested witness will not be considered an “interested witness” anymore and he/she will take under the terms of the new codicil.
What is a pour-over will
Identifies a trust created by T into which he can “pour over” his probate assets and thus avoid going through probate if assets less than 10K.
Pour-over will requirements
Valid if:
- The trust identified in the will;
- Terms set forth in instrument other than will and
- Trust executed concurrently or before will execution.
WILL REVOCATION: By physical act
A will or part of a will can be revoked by a physical act of T or another person in T’s presence and at T’s discretion.
- Physical act can include the will being burned, torn, canceled, destroyed, or obliterated with the intent to revoke it.
Presumed revoked by physical act
if T’s will was last in his possession and he was competent until death and can no longer be found, presumed that T revoked will with intent to destroy it
Duplicate revoked by physical act
A will executed in duplicate is revoked if one of the duplicates is destroyed, torn, burned, cancelled, or obliterated with the intent to revoke it.
Revocation by physical act, cross out:
where there is a devise to A and B and B has been crossed out, B’s portion goes to the will residue, not to A.
WILL REVOCATION: by subsequent will
T can revoke a will or codicil by executing a later will or codicil that partly or completely revokes the prior will or codicil expressly or implicitly by inconsistencies/ conflicting terms (inconsistencies of later doc control). **Oral revocations are not valid.
WILL REVOCATION: by operation of law, divorce
Divorce or dissolution of a domestic partnership automatically revokes all will provisions in favor of the former spouse or domestic partner unless it can be shown that testator intended for the will provisions to survive the divorce or dissolution. ***Separation does not revoke the will provisions.
WILL REVOCATION: by operation of law, omitted spouse or domestic partner/child
- The law will accommodate an unintentionally omitted spouse or child or subsequent domestic partner but only if the will was executed BEFORE marriage or birth of child or knowledge of child’s existence.
Omitted spouse/child is entitled to an intestate share unless:
- omission intentional
- spouse was given property outside of will in lieu of disposition of will
- spouse is party to a valid K waiving her right to a share in estate
- child’s other parent takes most
**WATCH OUT FOR CODICILS made after child born or marriage, would make that person not an omitted child or spouse
WILL REVOCATION: DRR
allows court to revive a revoked will when the testator revoked under a mistaken belief of law or fact. Ask:
(1) Did T revoke first will?
(2) Did T do so based on a mistaken belief of law or fact?
(3) Can it be shown that T would NOT have revoked original will but for mistaken belief?
(4) If yes, original revoked will revived.
Revival
When a will is revoked by a physical act or subsequent will, and then the subsequent will is revoked as well, the first will is revived if T intends for it be revived (revival not automatic).
**Extrinsic evidence allowed
Classification of gifts
- Specific: specific, identifiable prop (my earrings, my Cadillac). stock splits/dividends to beneficiary
- General: gift from general assets of estate (1K to John)
- Demonstrative: general gift from particular source (10K from USA Bank Account)
- Residuary: anything left over
Ademption by extinction (applies only to specific gifts)
Gift no longer exists or changed form.
- Traditionally, if specific item identified in will is not part of T’s estate at his death, B takes nothing.
- CA: courts look at T’s intent at time he disposed of gift. If evidence T intended B to get gift, court may provide B with general gift of similar value
Ademption by satisfaction (applies to general, specific or demonstrative)
If T gave gift to B during life and he intended to satisfy the devise by transfer, gift adeemed.
Abatement
Occurs when estate assets are insufficient to pay all debts of the testator and gifts. A court will “abate” or reduce the gifts to pay the debts. The court will abate the gifts pro rate in the following default order:
- Intestate property (prop not addressed in will)
- Residuary bequests
- General bequests
- Specific bequests
Providing for omitted children/spouse - Abatement
To satisfy the share owed to an omitted spouse, domestic partner, or child, the other gifts in the decedent’s will may have to abate.
- Any share owed is satisfied FIRST from the decedent’s estate not passing by will or trust.
- If that is not sufficient, then the shares of all beneficiaries taking under the will (or other testamentary instruments) abate pro rata, exempting specific property as necessary to fulfill the obvious intent of the decedent.
Lapse/antilapse (when B dies before T)
- Common law: If B dies before T, gift lapses (fails) and falls in residue.
- Antilapse (CA): if B blood-related to T (spouse does not count), B’s issue will take in his place, avoiding lapse, unless a contrary intention appears in the will (“if will says “to X, if she survives me” anti-lapse does NOT apply)
Exception to lapse/antilapse: class gifts
If B’s are a class, only the members of the class who are alive at the time of the execution of the will receive the benefit of the will.
Slayer rule
If B intentionally and feloniously kills T, he and his heirs will not take under the will or by intestacy.
INTESTATE DISTRIBUTION: CP
Surviving spouse takes all CP and QCP
INTESTATE DISTRIBUTION: SP
- All SP to spouse if no child;
- 1/2 SP to spouse if 1 child or parents or their issue;
- 1/3 SP to spouse if 2+ children.
If D has no heirs
- Parents
- Issue of parents
- Grandparents
- Issue of grandparents
- any other possible taker (parents of predeceased spouse)
- Escheat to state (last possible option)
120 hour rule
For intestate succession to apply, heir must survive the decedent 120 hours or he will be deemed to have predeceased the decedent.
Advancement (when is a gift an advancement?)
- Common law: Any lifetime gift was presumed to be an advancement of child’s intestate share. Child had to show the gift was an absolute gift.
- CA: gift only an advancement if (1) decedent declared in a contemporaneous writing that the gift was an advancement OR heir acknowledged such in a writing
Per capita
ONLY applies if surviving issue in SAME generation.
- Prop passes equally to each person
Per capita with representation
Applies if surviving issue in DIFFERENT generations.
- Prop divided at first generation w/ living takers.
- Deceased members’ share at that generation drop down to surviving issue.
- If deceased member has NO issue, member does NOT take share.
Stepparent adoption
Creates a parent-child relationship between child and stepparent.
- Does NOT prevent adoptee from inheriting from the other biological parent.
- Adopted children take the same as nonadopted children.
Posthumously born children
Arises when a child is conceived before but is born after the death of the mother’s husband.
- If the child is born within 300 days of the husband’s death, there is a rebuttable presumption that the child is the husband’s and the child will inherit as though it was born before the father died.
