Wills Flashcards
Capacity to make a Will
- must be 18
- understand the extent of property
- know natural objects of her bounty
- know the nature of her act
if no capacity, entire will is invalid
Insane Delusion
at time of execution,
- T had a false belief
- that was the product of a sick mind
- absolutely no evidenc to support belief
- delusion affected T’s will
Effect: only that part affected is invalid
Fraud (wills)
- representation
- of a material fact
- known to be false by wrongdoer
- for the purpose of inducing action, and
- in fact, the action is induced
Fraud in Execution- entire will invalid
Fraud in Inducement of a gift- that part invalid
fraud in preventing revocation - will revoked
Undue Influence (wills)
- prima facie
- requires 1. susceptibility, 2. opportunity, 3. active participation, 4. unnatural result
- effect: part effected invalid - Case Law
- 1. confidential relationship, 2. active participation, 3. an unnatural result
- effect: part affected is invalid - Statutory
- a gift to person who drafte will, a care custodian, or either’s relative is preesumed to be the product of undue influence
- effect: transferee deemd to have predeceased the testator
Mistake in Omission v. Mistake in addition
content of a will
Courts do not rewrite wills; so, misatke in omission no remedy, the court will strike a mistake in addition
Mistake (ambiguity) in a Description (wills)
may introduce parol evidence to cure any patent or latent ambiguities
Dependent Relative Revocation (DRR)
mistake in validity of subsequent testamentary insturment—
If testator revokes her will, int he mistaken belief that a substatially identical will effectuates her intent, then, by operation of law, the revocaiton of the first is deemed conditional, dependant, and relative to second effectuating T’s intent.
if the second does not, the first is not revoked
Pretermitted Child
an accidental omission of a child born or adopted after all testamentary insturments and not provided for in any, will take its intestate share.
Integration (of a will)
Which papers make up will? requirements: 1. intent 2. presence can be proven with either physicla or logical connection
Incorporation by Reference
- a document or writing
- in existence when will was creatd
- that is clearly identified in will
- that T intended to incorporate (implied if 1-3 are established)
Facts of independent Signficance
Who a beneficiary is, or what gift is given, may be given meaning by facts of signficance independent from testator’s will
allows us to fill in blanks with parol evidence that is trustworthy
Writing disposing of Limited Tangible Property
- referenced in will, dated and signed or handwritten by T
- dexcribe beneficiaries and gifts with reasonable certainty
- executed before or after the will
- 25k total limit, 5k single item limit
Validating Pour-over wills
- incorporation by reference
- facts of independent significance
- trust insturment, separate from will, validates pour over will - UTATA uniform testementary addtiions to trust act
Discusss all 3 theories
Elements for an Attested Will
Traditional Will Formalities:
- must be in writing
- signed by T
- in presence of 2 witness at same time
- witnesses must sign the will during T’s lifetime
- and understand the doc is T’s will
CA’s harmless error rule: will cure defects in 3-5 if proponent ofwill establishes T’s intent by clear and convincing evidece
Interested Witness Problem (wills)
there is a presumption that a witness-beneficiary secured his gift by wrongdoing, bu it can be rebutted
- if he cannot rebut, his gift is limited to the amount of his intestate share
Elements for a Valid Holographic Will
- signed by T
- material provisions must be in t’s own handwriting
- the gifts
- the beneficiaries
Date not required, but lack of date can cause problems:
- undated holograph invalid as to inconsistency with any other testamentary instrument
- if T could have executed undated holograph during at ime when he lacked capacity, it is invalid
Out of State Wills
Will be admitted to probate in CA, if it complies with
- CA probate code
- law of place where executed
- law of t’s domicile at time of execution
Revocation by Physicl Act
- will must be burned, torn, canceled (lining out) destoryed, or obliterated (erase)
- T must have simultaneous intent to revoke
- done by T or someone at T’s instruction
Revocation and Revival by Subsequent Instrument
Revocation - express - implied Revival - prior wills not autmatically revived if later will revoked- T must manifest intent to revive
Omitted Spouse
Spouse not provided for in will, married before all testamentary insturments recevies:
- T’s 1/2 of CP and QP
- A share of T’s SP (but not more that 1/2)
Effect of Dissolution of Marriage (wills)
- devises to spouse are revoked by operation of law, will be reinstated if they remarry
Ademption and Classification of Gifts
What happens when property is not in estate?
- Specific gifts: adeem by extinction (if not in estate, you get nothing) ask also, did T intend gift to fail?
- General Gifts: do not adeem by extinction
- Demonstrative Gifts: hybrid
Ademption by Satisfaction: (inter vivos gift) established by:
- will provides for deduction of intervivos gift
- t decares in contemporaneous writing that gift is a satisfcation
- ben. acknowledges in writing (at any time) that gift was a satisfaction
- property was subject of specific gift to ben.
compare advancemnt of inteestate share (basically same rules)
Widow’s Election
if spouse tries to dispose of more that 1/2 of cp under his will, the widow can either:
- take under will or
- take agaisnt will: receive her intestate share, but cannot take anything under the will
Unworthy heirs: Killers
anyone who feloniously and intentinonally kills the decedent cannot take under their will (deemed to have predeceased T)
A criminal conviction is conslusive, but a probate court can determine by preponderance of the evidence
Intestate succession
- Surviving Spouse:
- gets decednets 1/2 cp and QCP and
- SP- All if decedent had no issue, parents or issue of parents
- if 1 child- 1/2 to spouse, 1/2 to child
- if 2 or more children, 1/3 to spouse and 2/3 to children
- if no child but parents: 1/2 to spouse, 1/2 to paretns
- issue
- parents
- issue of parents
- grandparents
- issue of grandparents
Per Capita with Right of Representation
- go to first level with any person surviving, perople at that level take per capita (evenly)
- Deceased at that level take per capita but is distributed by representation to their issue
Lapse and Anti-Lapse
Rule of Lapse: if beneficiary does not survive T, then gift lapses (fails)
Anti- Lapse; if beneficary was kindred (blood relative) of T or T’s spouse and precedeases T, then gift goes to issue of beneficary
*note, that the A-L statute does not save a gift to a predeceased spouse herself
Abatement
The process by which certain gifts are reduced (when necessary to pay for omitted child or spouse)
Order of Abatement:
1. property not passing under the will or trust
2. Abate all trust and will beneficiares pro Rata
- except specific gifts if it would defeat the obvious intention of testator
Exoneration
paying off debts associated with gifts
CA rule: no automatic exoneration, you take property subject to encumbrances
