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
