Wills

Question 1

What are the three basic requirements for valid will formation?

Answer 1

Capacity

Intent

Formalities

Question 2

When is capacity measured?

Answer 2

At the time the will is executed

Question 3

What is required for testamentary capacity?

Answer 3

Age (≥18 or emancipated minor)

Sound mind (must understand nature of testamentary act, of property, and of relationships)

Question 4

Does an insane delusion invalidate capacity?

Answer 4

Only if it affects the drafter’s distribution of property

Question 5

When is testamentary intent assessed?

Answer 5

At the time of execution

Question 6

What can undermine proper intent?

Answer 6

Undue influence, fraud, or mistake

Question 7

What are factors for undue influence?

Answer 7

• relationship and opportunity
• susceptibility
• radical deviation from expressed intent
• active in procurement (i.e. drafting and execution)
• influencer benefits

Question 8

What is the test for fraud?

Answer 8

Would the gift have been made but for the fraud?

Question 9

What are the two types of testamentary fraud?

Answer 9

1) in the execution

2) in the inducement

Question 10

Two types of mistake for wills

Answer 10

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)

Question 11

Two types of wills

Answer 11

1) witnessed will (aka attested/formal will)

2) holographic will

Question 12

Requirements for attested will

Answer 12

1) in writing
2) subscribed (signed by testator – can be someone else’s signature if at testator’s instruction)
3) signed by two witnesses

Question 13

What are the requirements for the two witness of an attested will?

Answer 13

• witnesses must know the testator understands the will

- must be disinterested (not a beneficiary)

Question 14

Is an executor an interested witness?

Answer 14

No because they are acting in a fiduciary capacity

Question 15

What is “substantial compliance” with respect to wills?

Answer 15

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

Question 16

requirements for a holographic will

Answer 16

1) signed by testator
2) in testator’s handwriting
- no date required
- no witnesses required

Question 17

Integration

Answer 17

will includes all documents testator intended to be part of it at the time of execution

Question 18

Incorporation by reference

Answer 18

testator may incorporate by reference as long as

1) the doc existed at execution; AND
2) is clearly identified

Question 19

When is a will executed outside of CA valid?

Answer 19

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

Question 20

two types of will revocation

Answer 20

express or implied

Question 21

How can a will be revoked?

Answer 21

• physical act (defaced w/ intent to revoke)

- marital dissolution –> implied revocation of any disposition by will made to a former spouse

Question 22

How can a will be revived?

Answer 22

• by re-execution (formalities + intent)

- by republication (e.g. via a valid codicil)

Question 23

What is the hierarchy of devises?

Answer 23

specific

demonstrative

general

residuary

intestate

Question 24

What is it called when a gift in a will no longer exists?

Answer 24

Ademption

Question 25

What are the types of ademption

Answer 25

partial or complete

Question 26

When does an inter vivos gift satisfy a will?

Answer 26

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

Question 27

What is it called when an inter vivos gift reduces the intestate share?

Answer 27

Advancement

Question 28

When does advancement reduce the intestate share?

Answer 28

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

Question 29

Do specific / general / demonstrative devises get increases in value between death and distribution?

Answer 29

Specific devises do.

General & demonstrative devises don’t get increase in value b/w death and distribution

Question 30

What is the process of paying back debts called?

Answer 30

Abatement

Question 31

What is lapse?

Answer 31

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.

Question 32

When and for whom does an anti-lapse statute apply?

Answer 32

When a beneficiary doesn’t survive the testator by 120 hours.

Only applies to family members of deceased beneficiary

Question 33

What two types of disclaimer are there?

Answer 33

Partial or total

BOTH ARE IRREVOCABLE

Question 34

When can a disclaimer apply?

Answer 34

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

Question 35

When does the omitted spouse statute apply?

Answer 35

When a spouse who the testator married after will execution is left out of the will

Question 36

What are the three exceptions to the omitted spouse statute?

Answer 36

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

Question 37

What would an omitted child receive?

Answer 37

A share equal to his/her intestate share

Question 38

Exceptions to the omitted child statute

Answer 38

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