Wills Flashcards
Validity of a Will under California Law
A will is valid in California if it is valid under (a) California law; (b) the law of the State where the will was executed; OR (c) the law of the State where the testator was domiciled at the time of execution or death.
Attested Will Execution Requirements
A valid will requires (1) a writing concerning the distribution of property upon death (2) signed by the testator or someone at his direction and in his presence (an appointed conservator may also sign); (3) the signing must be witnessed by two disinterested individuals (both must be present at the same time); (4) the witnesses must sign the writing during the testator’s lifetime; AND (5) the witnesses must understand that they signed the testator’s will.
After January 1, 2009, a will which complies with the writing and testator’s signature requirements (but fails to comply with the witnessing requirements) MAY still be admitted to probate if the proponent of the will is able to produce clear and convincing evidence that the testator intended the document to be her will at the time it was signed.
Holographic Will or Codicil
A holographic will is handwritten and signed by the testator, but not witnessed. In California, a holographic will or codicil is valid if signed by the testator AND all material terms of the will are in the testator’s handwriting. Material terms include the name of the beneficiaries and the gifts they will receive. There is no requirement that a holographic will devise the testator’s entire estate; instead any portion not devised will pass by intestacy.
Holographic Wills and Dates
The lack of a date DOES NOT affect the validity of a holographic will, except when: (a) there is an issue with testamentary capacity; OR (b) there is a possibility that two or more wills should be probated which are inconsistent – in such instance the holographic will is invalid to the extent of the inconsistency (unless the time of its execution is established to be after the date of execution of the other will).
Modification of a Will by Codicil
To revoke a will through a codicil, there must be intent to do so. A codicil is an instrument made after a will is executed that modifies, amends, or revokes a will. A codicil MUST satisfy the same formalities as a will. Execution of a codicil republishes the will, meaning courts will consider the original will to have been executed on the same date as the codicil. A validly executed codicil will also cure any interested witness problems with the original will.
Ambiguities in a Will
A court will consider extrinsic evidence to clarify any ambiguities in a will.
Integration
Documents will be integrated into a will if the testator intended them to be part of the will AND they were physically present at the time of the will’s execution.
Incorporation by Reference
A document or writing may be incorporated into a will by reference if it (1) was in existence at the time the will was executed; (2) is sufficiently described in the will; AND (3) the testator intended to incorporate it.
Testator Gift of Community & Separate Property
In any will, a testator may only gift his share of the community property. In addition, a testator who is married may devise any separate property he or she owns (i.e. property acquired prior to a marriage or by inheritance).
Revocation by Physical Act
A will is revoked by physical act if: (1) the testator intended to revoke the will; AND (2) the will is burned, torn, destroyed, or cancelled by the testator (or by someone at the testator’s direction while in the testator’s presence). A will executed in duplicate is also revoked if one of the duplicates is revoked by physical act.
Revocation by Subsequent Will or Codicil
A testator can revoke a will by executing a subsequent valid
will or codicil.
Revocation by Divorce
In California, any gifts to a spouse are revoked upon
divorce.
Partial Revocation of a Will
A testator may make a partial revocation of a will he intends to revoke by lining through or crossing out a portion of it. However, he CANNOT increase a gift in a will through a partial cancellation; this must be done by adhering to will formalities. Partial revocation of a holographic will may be done through interlineation (writing between the lines of a will).
Dependent Relevant Revocation
The dependent relevant revocation doctrine cancels a revocation that was made under a mistaken belief of law or fact by the testator. The doctrine applies when the testator would not have revoked his original will but for the mistaken belief that another will he prepared would be valid.
Revival of Revoked Wills & Republication by Codicil
Revoked wills may be revived under certain circumstances. A will revoked by physical act will be revived if a testator shows intent for its revival. A will revoked by a subsequent instrument can be revived if the testator republishes the will by a subsequent will or codicil that complies with the will execution formalities.
Testamentary Capacity
To have sufficient capacity to execute a will, a testator must (1) be at least 18 years old; (2) understand the nature and extent of her property; AND (3) understand the natural objects of her bounty (i.e. her relatives and friends). Appointment of a conservator alone, does not prove a lack of capacity.