Wills Flashcards
Integration
A writing constitutes a will or part of a will if the testator intended it to be a will and if it was present at the time of execution
Incorporation by Reference
- Need a document or writing
- Must have been in existence when will was executed
- Document must be
clearly identified in the will - T must have intended o incorporate document into will
Facts of Independent Significance
Blanks in a will can be filled by reference to facts of significance independent of the will, using trustworthy parol evidence
Pour Over Validation
1.Incorporation by reference
2. facts of independent Significance
3. Uniform Testamentary Additions to Trusts Act
Can a will be probated?
Will will be probated if it complies with the law
1. where the will is to be probated
2. where the will was executed
3. the place of T’s domicile at the time of execution
Capacity
- 18 years old
- T understands extent of prop.
- T understands the nature of his bounty
- T knows the nature of his act is to make a will
Lack of Capacity
The entire will in invalid, except in the case where capacity was lacked as to a 2nd will revoking a prior will for which T had capacity
Fraud
1.Misrepresentation of a material fact
2. Person Committing fraud knows it is false (scienter)
3. Made for the purpose of inducing action or inaction
4. Actually induces action or inaction
Fraudulent Inducement
The wrongdoer’s representations affect the content of T’s will. Only serves to invalidate the parts of the will affected.
Fraudulent Execution
Someone forges T’s signature or T given doc to sign which is purportedly non-testamentary. Invalidates entire will .
Fraudulent Prevention of Revocation
Results in a constructive trust.
Prima Facie Undue Influence
- T is susceptible to some weakness like physical, emotional, financial.
- Opportunity
- Active participation
- Unnatural result (not unnatural to prefer one child of another)
- Wrongdoer benefits financially
Presumption of Undue Influence
- Confidential Relationship (T placed an unusual amount of confidence in the beneficiary, and relied on the beneficiary)
- Active Participation
- Unnatural Result
- Wrongdoer Benefits
Statutory Undue Influence
A donative transfer is presumed product of undue influence if to:
1. drafter,
2. fiduciary who transcribed instrument,
3. care custodian of a dependent adult (if instrument executed during care or within 90 days of care,
4. a spouse, domestic partner, cohabitant, employee, or relative within 3rd degree of any of the foregoing
Presumption is conclusive for drafter and associates, rebuttable for others.
Statutory undue Influence Exception
Presumption is inapplicable to:
1. spouse or cohabitant of transferor (even if person was the drafter) or
2. any transfer if reviewed by independent attorney
Insane Delusion
- T had false belief
- that false belief was the product of a sick mind
3a. In CA, there must be no evidence to support the belief
3b. A belief is delusional if no rational person would believe it (even if some factual basis exists) - Delusion must have affected T’s will
Mistake in Execution
T signs the wrong document, mistaking it for a non-testamentary instrument. Will is not probated.
Mistake in Validity of Subsequent Instrument
If T revokes her valid will, or portion thereof, in mistaken belief that a substantially identical will or codicil effectuates her intent, then, by operation of law, the revocation of the first is deemed conditional, dependent, and relative to the second effectuating T’s intent and being valid.
Even if lost or destroyed, the first will can be probated if at least one witness testifies to its contents.
Mistake Involving Living Children
A child is pretermitted if born or adopted after all testamentary instruments are executed and not provided for therein. Pretermitted child receives his intestate share.
If child is born/adopted before execution of all testamentary documents and he is omitted from them, the child takes nothing (unless T mistakenly believed them dead or non-existent).
Attested Will
A valid will must be:
1. In writing
2. Signed by either T, third person in T’s presence at T’s direction, conservator pursuant to a court order
3. Signed in the presence of two Ws, who are both present at same time (if T previously signed alone, he must acknowledge his signature in presence of two Ws)
4. Ws must understand the the instrument they sign is Ws will
Common Misconceptions of Attested Wills
- Ws do not have to sign in the presence of each other
- Ws do not have to sing is presence of T
- T doesn’t have to declare “this is my will”
- T doesn’t have to sign before the Ws, no order of signing
- Neither T nor Ws have to sign at the end, anywhere is okay
Interested W
A W who is a beneficiary under the will. Can also be a W who is not named in will but receives substantial indirect benefit.
Will is not invalid, but unless there are at least 2 other disinterested Ws, a presumption arises that the W secured the gift by wrongdoing. This presumption can be rebutted by if not then they will take an amount no greater than what they would have received in intestacy.
Holographic Wills
- Signed by T anywhere
- Material provisions are in T’s handwriting
T’s intent that the doc be a will need not be stated on the face of the instrument and can be proven by extrinsic evidence. T’s intent can be part of a printed commercial will form.
Holographic Will Dates
A date is note required on a holographic will, but lack of date can create 2 problems:
- Inconsistent Wills (An undated holographic will is invalid to the extent of inconsistency with another will unless the undated holograph’s time of execution is established to be later. _
- Capacity (An undated holographic will is invalid if T lacked capacity at any time it may have been executed, unless established that executed during a time of capacity)
