Wills Flashcards
Will Requirements and Substantial Compliance Doctrine
A valid will requires:
1) A writing;
2) Signed by testator with capacity;
3) Present testamentary intent;
4) At least 2 disinterested witnesses to the signing ;
5) Witnessed during the testator’s lifetime; and
6) An understanding that they signed witnessing the testator’s will.
Even if all of these formalities are not met, the will may still be deemed satisfactory if the testamentary intent is shown with clear and convincing evidence.
Holographic Will or Codicil
A holographic will is one which is not formally witnessed, but holds a measure of authenticity because the material provisions are written in the testator’s handwriting. For such a will to be valid a testator:
1) With capacity must
2) Intend for the document to be a will;
3) Handwrite the material provisions; and
4) Sign the document.
Incorporation by Reference
Any separate document may be incorporated by a will by reference if the document is:
1) in existence on the date of the will;
2) intended to be incorporated into the will;
3) described in the will; and
4) authenticated to be the docment referred to.
Pour-Over Will
A pour-over will is a valid will that pours over the estate of the decedent into a trust upon his/her death. The trust must be in existence at the time the will was executed.
Modification by Codicil
A codicil is an instrument created after a will is executed that modifies, amends or revokes a will. A codicil must comply with the same formalities as a will, and has the effect of republishing the will and establishing an effective date of the date of the codicil.
Revocation by Subsequent Will or Codicil
Revocation of a formal valid will can be done by executing a subsequent valid will or codicil. A will can also be revoked by a physical act, such as destroying the original. Duplicate copies are deemed as having been destroyed in the original or any copy is intentionally destroyed by the testator.
Revocation by Divorce
A divorce renders all gifts to previous spouse as revoked.
Interlineation
Interlineation is when a testator attempts to modify a gift in their will by writing over the devise. This change must be in the testator’s handwriting, and signed. Generally, increases to the gift are not permitted, and the court will likely award the original amount, and any decrease is interpreted by the court as the gift being deemed void.
Testamentary Capacity
A testator must:
1) Be at least 18 years old;
2) Have testamentary intent to create a will;
3) Understand the type and amount of their assets (their bounty); and
4) Understand who they are giving these assets to.
Lack of Testamentary Capacity
If a testator is found to lack capacity at the time of execution, the entire will is deemed invalid. If there is no prior valid will, this will result in intestacy.
Community Property Implication to Distributions
California is a community property state. When a spouse dies with a will, they may transfer only their 1/2 community property interest and all of their separate property by will. The surviving spouse will continue to own the remaining 1/2 interest in community property.
Disintersted Witnesses
A will is valid only if it is signed by the testator in the presence of two disinterested witnesses. Any gifts made to a witness is deemed presumed to be invalid, and they will only take their intestate share. In order for them to take the gift, the witness will have to rebut the presumption
Undue Influence
Prima facie case requres 1) testator who is susceptible to undue influence; 2) there is opportunity for the wrongdoer to influence; 3) the wrongdoer forces, threatens, or actively influences the testator; and 4) the result in the will is unnatural
Presumption of undue influence requires a confidential relationship, with active participation by the influencer in the drafting of the will, with an unnatural result
California statute states that undue influence exists if the testator makes a testamentary gift or donative transfer to 1) the drafter of the will; 2) a caretaker or custodian of a “dependent adult” testator; 3) a person in fiduciary relationship with the testator; 4) any spouse, partner, employee, or related by blood to any of 1-3; or 5) a partner, shareholder, or employee of the law firm of the drafter or fiduciary.
California courts will presume undue influence if the beneficiary is a witness to the will, and there is not two other disinterested witnesses.
Lapse and Anti-Lapse Statues
If a beneficiary dies prior to the testator, the gift lapses and falls to residue. California’s anti-lapse statute provides that if the devisee was a blood relative, that the gift will not lapse, but will pass to the beneficiary’s issue.
Will Revival
A previously revoked will may be revived if it is evident from the testator’s contemporaneous or subsequent declarations that the testator intends the previous will to take effect as executed.
Dependent Relative Revocation
A valid will can be revived if the testator has a valid will which they attempted to revoke with a new instrument, but, for some reason, the new instrument is invalid. The testator would have never revoked the first will but for the mistaken belief that the new instrument would be valid.
Widow Election
When a spouse dies and leaves community property to another, the surviving spouse can elect to take either 1) her share of the community property or 2) her devise under the will.
Residual Estate
The residue of an estate is what remains after all other testator gifts have been distributed.
No Surviving Issue
If the testator leaves no isse, their estate passes to the nearest generation equally, in order:
1) Parents;
2) Parents’ issue;
3) Grandparents;
4) Grandparents’ issue.
Per Capita with Representation
Any share not passing to a surviving spouse/partner will be distributed to descendents per capita wit with representation. The property will be divided equally at the first generation with living takers, with each living taker taking their share. The shares of the deceased person at the first generation will pass to their issue by right of representation
Per Stirpes Distribtion
In per stirpes distribution, the estate is distributed equally among the immediate descendents, with each beneficiaries share passing to their surviving descendents.
Intestacy
In California, intestacy statutes use modern per stirpes - the residue of the estate is divided equally among the first generation of living heirs. If one of the first-generation heirs dies, their share is divided amongst their children
Ademption by Extinction
A specific gift adeems by extinction if the testator disposes of that asset prior to death. Exceptions to this rule include when one stock is sold and another is purchased with the proceeds, or when the asset is destroyed, but there is some form of insurance reimbursement that is pending.
Abatement
Abatement is the process of reducing gifts when assets are insufficient.
