Wills Flashcards
What are the three basic requirements for valid will formation?
Capacity
Intent
Formalities
When is capacity measured?
At the time the will is executed
What is required for testamentary capacity?
Age (≥18 or emancipated minor)
Sound mind (must understand nature of testamentary act, of property, and of relationships)
Does an insane delusion invalidate capacity?
Only if it affects the drafter’s distribution of property
When is testamentary intent assessed?
At the time of execution
What can undermine proper intent?
Undue influence, fraud, or mistake
What are factors for undue influence?
- relationship and opportunity
- susceptibility
- radical deviation from expressed intent
- active in procurement (i.e. drafting and execution)
- influencer benefits
What is the test for fraud?
Would the gift have been made but for the fraud?
What are the two types of testamentary fraud?
1) in the execution
2) in the inducement
Two types of mistake for wills
1) in the execution (i.e., mistaken as to what type of document you’re signing. invalidates the will)
2) in the inducement (does not affect testamentary intent, no relief is granted)
Two types of wills
1) witnessed will (aka attested/formal will)
2) holographic will
Requirements for attested will
1) in writing
2) subscribed (signed by testator – can be someone else’s signature if at testator’s instruction)
3) signed by two witnesses
What are the requirements for the two witness of an attested will?
- witnesses must know the testator understands the will
- must be disinterested (not a beneficiary)
Is an executor an interested witness?
No because they are acting in a fiduciary capacity
What is “substantial compliance” with respect to wills?
For a witnessed will, substantial compliance doctrine holds that a will that fails to meet one of the three requirements is still valid on a showing of clear and convincing evidence that when the testator signed the will he intended it to constitute his will
requirements for a holographic will
1) signed by testator
2) in testator’s handwriting
- no date required
- no witnesses required
Integration
will includes all documents testator intended to be part of it at the time of execution
Incorporation by reference
testator may incorporate by reference as long as
1) the doc existed at execution; AND
2) is clearly identified
When is a will executed outside of CA valid?
As long as it complies with…
1) CA law
2) law in place of execution
3) law in place testator was domiciled at death or at execution of will
two types of will revocation
express or implied
How can a will be revoked?
- physical act (defaced w/ intent to revoke)
- marital dissolution –> implied revocation of any disposition by will made to a former spouse
How can a will be revived?
- by re-execution (formalities + intent)
- by republication (e.g. via a valid codicil)
What is the hierarchy of devises?
specific
demonstrative
general
residuary
intestate
What is it called when a gift in a will no longer exists?
Ademption
What are the types of ademption
partial or complete
When does an inter vivos gift satisfy a will?
Only if one of the following three requirements are met
A) stated in the will
B) signed writing by testator or a beneficiary stating it’s meant to be in satisfaction; OR
C) extrinsic evidence shows the testator intended satisfaction
What is it called when an inter vivos gift reduces the intestate share?
Advancement
When does advancement reduce the intestate share?
Only if
A) decedent or heir declared in writing that the gift was an advancement; AND
B) decedent’s or heir’s writing indicates the gift is to be taken into account when computing the amount to be distributed
Do specific / general / demonstrative devises get increases in value between death and distribution?
Specific devises do.
General & demonstrative devises don’t get increase in value b/w death and distribution
What is the process of paying back debts called?
Abatement
What is lapse?
When a beneficiary predeceases testator. A gift lapses if it can’t be established by C&C evidence that the beneficiary survived the testator by 120 hours.
When and for whom does an anti-lapse statute apply?
When a beneficiary doesn’t survive the testator by 120 hours.
Only applies to family members of deceased beneficiary
What two types of disclaimer are there?
Partial or total
BOTH ARE IRREVOCABLE
When can a disclaimer apply?
With a signed writing of the beneficiary and must
A) identify creator of interest
B) describe property being disclaimed; AND
C) state disclaimer and extent thereof
When does the omitted spouse statute apply?
When a spouse who the testator married after will execution is left out of the will
What are the three exceptions to the omitted spouse statute?
1) when the omission was intentional and it appears in the will
2) when the decedent spouse provided for the other spouse outside the will and intended provision to replace will (must be proven)
3) valid premarital agreement
What would an omitted child receive?
A share equal to his/her intestate share
Exceptions to the omitted child statute
1) intentional & omission appears in the will
2) decedent had children and devised estate to surviving parent
3) provided for child outside the will + intended to do so + this is proved
