WILLS Flashcards
Choice of Law
A will can probated in CA if it complies with the formalities of execution of either: 1) CA; 2) place where executed; or 3) place of domicile at time of execution.
Attested Will
For an attested will to be valid, it must be: 1) in writing; 2) signed by the testator, or by another in his presence at his direction, or by a conservator pursuant to a court order; 3) the testator signed or acknowledged his signature in the presence of two witnesses; 4) the witnesses sign within the testator’s lifetime; and 5) the witnesses understand that the instrument is the testator’s will.
Attested Wills
Harmless Error - Failure to meet attestation requirements
A will that does not comply with witnessing requirements can be probated if will proponent establishes by Clear and Convincing Evidence that T intended instrument to be his will at time of signing.
Interested Witness
When a witness is also a beneficiary to the will a rebuttable presumption is raised that the gift was procured by wrongdoing unless there are 2 other disinterested subscribing witnesses. If W rebuts the presumption, she takes gift per the will. If W cannot rebut, she takes amount not exceeding intestate share.
Exception - Presumption does not apply if witness is only taking in fiduciary capacity (ex. trustee)
Revocation by Subsequent Instrument
A subsequent valid will can totally revoke a prior will if: (1) a clause in the subsequent will expressly revokes the prior will, or (2) the provisions of the subsequent will are entirely inconsistent with the terms of the prior will.
Revocation by Physical Act
A testator or someone in testator’s presence at his direction can revoke a will by tearing, cancelling, burning, or destroying with present intent to revoke. In order to revoke by tearing or cancelling, the will must be torn or cancelled through a material part.
Cancellation / Interlinenation
Cancellation occurs when the testator crosses out a provision of a will. Interlineation occurs when the testator writes above or between the lines of a cancellation.
Duplicate Wills
If there are original duplicates (not photocopies) of fully executed wills, and T, or someone in T’s presence and at his direction, revokes one of the originals by physical act, the other is revoked as a matter of law.
Mutilated Wills
If a will is found in mutilated condition at T’s death, and was last seen in T’s possession, there is a rebuttable presumption that T mutilated with intent to revoke.
Lost / Destroyed Will
A lost or destroyed will may still be probated if there is adequate proof of its terms, which may be proven by a copy of the will or by testimony of people who knew of its contents.
Codicil
A codicil is a later testamentary instrument intended to revoke or amend an existing will, in whole or in part, and must be executed with the same formalities as a will.
Holographic Will / Codicil
CA recognizes holographs. To be valid, a holograph must be signed and the material terms (beneficiary’s names and gifts made) must be in testator’s handwriting.
Dependent Relative Revocation
DRR applies when the testator revokes his will or provision thereof with the mistaken belief that the subsequent disposition is valid. The court will disregard the revocation if the testator would not have revoked the prior disposition but for the mistaken belief.
Revival
Revival of a revoked will concerns an original will that was revoked by a subsequent instrument, which was itself revoked by physical act or subsequent instrument. The original will may be revived by reexecution or republication.
Revival by Reexecution
A revoked will can be reexecuted if the testator acknowledges his signature on Will-1 or acknowledge will itself and have two witnesses attest to it.
Revival by Republication
A revoked will still in existence may be revived through publication of a subsequent codicil if the prior will was valid and was not revoked by destruction.
Integration
A will may be more than one document. Documents that are physically present at the time of the will’s execution and intended by the testator to be a part of the will are integrated into the will.
- EE admissible to show papers constitute will.
Incorporation by Reference
To incorporate a document by reference it must be: 1) in existence at the time the will was executed; 2) sufficiently described in the will; and 3) proven that the document is the one described in the will.
Acts of Independent Significance
A testator may dispose of property by reference to acts of the testator or third party, or events if the acts have a significance independent from its effect on the disposition in the will.
“I leave all my property to church I am a member of at the time of my death”
T bequeaths contents of safe deposit box to A.
No independent significance if T bequeaths items in desk drawer b/c many would have access
Omitted Spouse
A spouse is omitted if she married the testator after execution all testamentary documents and was not provided for in the will. The testator is entitled to an intestate share unless: 1) there is a valid prenup; 2) the spouse was provided for outside the will; or 3) the testator intentionally excluded the spouse from the will.
Omitted Child
A child is omitted if he was born after testator executed all testamentary instruments and was not provided for in the will. The child is entitled to an intestate share unless: 1) the child was provided for outside the will; 2) the child was intentionally excluded from the will (must be apparent on face of will); or 3) testator devised a substantial portion of the estate to the child’s parent.
If testator unintentionally failed to provide for a child because he was unaware of his birth or believed the child was dead, the child will receive a share equal in value to the share he would have received if the testator had died intestate.
An omitted child’s share is taken first from the testator’s estate not passing by will or trust. If that is not sufficient, the share is taken pro rata from all of the beneficiaries taking under the will/revocable trust.
Abatement - Omitted Child
An omitted child’s share is satisfied first from the testator’s estate not passing by will/trust, and if insufficient, by taking a pro rata share from all of the beneficiaries taking under the decedent’s will and/or trust. The child’s share will be subtracted from the entire trust value and then the trust terms apply to the remainder.
Ex. T has 3 children so omitted child takes 1/3 of estate. Entire trust value is $300K, so omitted child takes $100K. Applying terms of the remainder, M takes 1/2 of remainder (100K) and A/B take 1/4 each ($50K).
Order of Abatement
Unless the will sets out an order of abatement, estates abate in the following order: (1) intestate property; (2) residuary estate; (3) general gifts to non-relatives; (4) general gifts to relatives; (5) specific gifts to non-relatives; (6) specific gifts to relatives. Gifts are abated pro-rata within each category.
Demonstrative gifts are treated as specific gifts for abatement purposes, but if the fund is insufficient, it is treated as a general gift.
Lapse
A gift lapses when a beneficiary predeceases the testator. A lapsed gift will fall into the residue or if there is no residuary estate, passes by intestate sucession.
