Wills Flashcards
Spouse’s intestate share
gets 100% of CP
**SP: **
no issue, parent, or issue of parent: 100%
one issue or parent or sibling: 50%
more than one issue: 1/3
Intestate share of issue
includes lineal descendants, adopted children, and after born children if born within 300 days of husbands death
apply either per capita, per stirpes, or per capita with representation
Per capita with representation
divide property equally at first generation with living member who survived the decedant. For those dead, their issue divide their share
Per stirpes
divide property into total number of children who survive or leave issue. must divide at first generation
Per capita at each generation
divide property at first generation with a living member, combine shares of deceased members of that generation and then divide those equally at next generaiton
no spouse or issue
estate passes to parents who survive, then siblings, then grandparents, then aunts and uncles, then issue of predeceased spouse, then next of kin, and if noone, then escheats to the state
When heir dies at or near same time as decedant
heir wil be treated as predeceasing decedant unless there is clear and convincing evidence that the heir survived D by 120 hours, only applies for intestacy
Valid Attested Will
A valid attested will requires:
a writing (no oral wills)
testamentary intent: tesetator must intend the instrument to be their will
signature of testator or someone in his presence and at his direction anywhere on the document
and witnesses: the will must be signed by at least two witnesses with conscious presence at the same time and understanding they are signing a will
Interested witnesses
at common law, the will was invalid, but in California, the will is valid but but there is a rebutable presumption of duress, and if not rebutted, t hen witness takes an intestate share instead.
If there is a 3rd disinterested witness, the gift isn’t affected
Valid Holographic will
the material provisions of the will must be handwritten by testator and signed
a date not required, but if not included, presumed to predate other wills
no witnesses needed
must have testamentory intent
Codicil
a testementary addition to a will, and must have the same formalities of a will to be valid.
republishes the will as of the date of the codacil
can be holographic or attested
can cure an invalid will
Substantial Compliance
CA recognizes a harmless error exception and will recognize a will as valid if it substantially complies with will formalities if shown by clear or convincing evidence that it was meant to be a will or codacil
Will contest requirements
time limit :120 days after will is admitted to probate
Standing: only beneficiaries under a current or prior will have standing
Lack of capacity
may invalidate a will
must show at time T made the will, they:
lacked mental capacity to understand the nature of the act, understand the nature of his property, or remember his relationship to spouse/descendants OR
T suffered from a mental disorder causing T to devise property in a way he otherwise wouldn’t
Proof of incapacity may be shown by deficit in alertness, or inability to modulate mood
Insane delusion
may invalidate will
operated under a belief not based in fact or reason, requires** but for causation**, T would not have disposed of property but for the insane delusion
California Undue influence
statutory presumption: automatically invalidates any provision in a will in favor of the person who drafted it, except T’s relatives or if will was reviewed by independent attorney
other situations, apply 4 factor test:
victims vulnerability
influences apparent authority
influencers tactics
equity of the result
[TEVA]
Traditional Undue influence
Must show:
Suseceptibility
Motive
Opportunity
Causation (but for)
[SMOC]
presumption of undue influence if beneficiary stands in a confidential relationshp to T, paticipated in the will, and the gift was unnatural
Fraud
all or part of will will be invalidated if there is fraud
at the time the will was executed, there must have been a misrepresentation with intent to deceive T
can be fraud in the inducement or fraud in the execution