Wills Flashcards
Formal Will
typewritten in its entirety.
Elements include (1) must in writing, (2) capacity (3) intent to transfer at death (4) signed by testator (5) signed by 2 disinterested witnesses
holographic will
“material provisions” are handwriting of testators.
Elements include (1) writing, (2) capacity, (3) intent (4) signed by testator (5) no witness required
disinterested witness
CL, witness w/pecuniary interest under will is not competent as witness.
CA, an interested witness is competent and will is valid
pour over will
pours all testamentary property into trust upon death
abatement
court reduces gift specified in testamentary document in order to distribute assets to omitted beneficiaries
harmless error doctrine
if will isn’t executed in compliance w/CA witness requirements, will shall be treated as if its properly executed if it establishes by clear and convincing evidence that at time of testators signed will, testator intended will to constitute testator’s will
contests of wills
Fraud, lack of capacity, undue influence, mistake, defective execution
contest of wills - fraud
misrepresentation as to nature of instrument, testator induced into making will by misrepresentation of fact (void in whole or in part)
contests of wills - undue influence (2 approaches)
Traditional – (1) susceptibility (2) motive (3) opportunity (4) causation
CA – (1) vulnerability of victim, (2) influencers apparent authority (3) actions/tactics used by influencer (4) equity of results/economic consequences
Revocation
express, physical act or operation of law
incorporation by reference
at CL, will may incorporate by reference of another writing not executed w/testamentary formalities if writing (1) existed at time will was executed, (2) is intended to be incorporated and (3) is described w/sufficient certainty as to permit its identification
doctrine of integration
will consists of all pages that are present at execution and intended to form will
revocation by subsequent instrument
testator may revoke later will or codicil that partly or completely revokes prior will
codicils
modifications of earlier will (must meet requirements of formal/holographic will)
conflicts of law
will is probated as long as its valid either under laws of state in which its executed/written or under laws of state domiciled at death. Courts will uphold testators’ intent
lapse
when beneficiary dies prior to testator, gift lapses either into residuary or distributed by intestacy
anti lapse
gift can be saved if beneficiary is related to testator and leaves an issue. Issue will take
ademption by extinction
if testator devises specific gift but no longer owns it at death, gift is adeemed and beneficiary takes nothing.
omitted spouse
generally takes interstate share unless…
Testator intentionally left spouse out of will, testator provided for spouse outside will or surviving spouse voluntarily executed a valid waiver
pretermitted child
children born/adopted after execution of will receive equal shares unless…
Testator intentionally left out child, testator provided substantially to other parent, or testator provided for child outside will
multiple copies of wills
revocation of one will is presumed to be revocation of all duplicate wills
types of devises
- Specific gift – transfer of specifically identifiable property
- General – transfer satisfied from general assets of estate
- Demonstrative – general gift that specifies funds/property from which transfer is primarily to be made
- Residuary – transfer of property remaining
duty of conservator
In CA, a conservator for an individual who lacks testamentary capacity can make a will for that individual if a court orders the conservator to do so. The conservator assumes various duties, including that of a fiduciary for the conservatee, which implies a duty of loyalty and care wherein the conservator must act in the conservatee’s best interests.
