Wills Flashcards
Attested Will
Shall be in writing, signed, and
Be witnessed by at least two persons
Be witnessed by at least two persons Will
Must be present at same time and
Must understand instrument is testator’s will
Interested Witnesses
Presumed witness procured device by Duress, menace, fraud, or undue influence Unless person made solely fiduciary If fails, witness can rebut presumption If fails to rebut presumption May take under intestate succession
CA Substantial Compliance Wills
Establish by clear & convincing evid
Testator intended to constitute testator’s will
Holographic Will
Signature & material provisions in
Handwriting of testator if shows
Testator’s testamentary intent
Pour Over Will
Regular will leaves residuary to trust
Must be in existence at time will is made
Must be identified in will and
Trust may be modified in future
Capacity Challenge Will
Must be 18 years and not have mental deficiency
Mental Capacity or Insane Delusion
Mental Capacity Will
Must know will was testamentary act
Extent of her property, and
Extent of beneficiaries
Insane Delusion Will
Belief in things possible, but improbable Under surrounding circumstances Such that no man of sound mind could Give them credence or a Belief in impossible things
Must be in reference to testator’s property or
Testator’s relatives such that
Causes particular disposition or
Prevents disposition in will
CA Conservator Will
In California, conservator for individual
Who lacks testamentary capacity can
Make will if court orders it
Assumes various duties including
Fiduciary for conservatee, implying
Duty of loyalty and care
Conservatee does not necessarily lose
Right to take part in important decisions
Undue Influence Will
Mental, moral, or physical exertion which
Destroyed free agency of testator by
Preventing testator from following dictates and
Accepting instead domination and influence
Trad Test Undue Influence Will
Susceptibility, motive, opportunity, and causation
CA Test Undue Influence Will
Vulnerability of victim
Influencer’s apparent authority
Actions or tactics used by influencer, and
Equity or inequity of result
Fraud in Execution Will
Testator does not know he is signing will
Must be shown party knowingly made
False statement of material fact, with
Intent to deceive where testator relied
Fraud In Inducement
Party tells testator facts that influence Testator in executing his will Must be shown party knowingly made False statement of material fact, with Intent to deceive where testator relied
Fraud Presumption Will
Presumed when donative transfer is made to
Person who drafted it
Someone in fiduciary relationship transcribed or
Caused to be transcribed
Care custodian during services or within 90 days
Overcome by clear & convincing evid
Exception of Fraud Presumption Will
Blood relative
Transfer less than $5,000
Independent attorney reviews instrument
Integration Will
If present at time of execution and
Testator intended them to be part of will
Extrinsic evidence allowed to show intent
Codicil
Amendment to existing will
Must meet same formalities as will
Incorporation by Reference
Writing in existence when will is executed
May be incorporated by reference if
Language of will manifests intent and
Describes writing sufficiently to identify
Facts of Independent Significance
May be disposed of based upon event,
Fact or act outside of will that cannot
Change disposition of will
Lists of Personal Property (CA)
If will refers to separate writing of
Statement or list that disposes of tangible prop and
Writing is signed by testator,
Describes property w/ reasonable certainty and
Not over $25,000, it may be
Included in disposition of will
Types of Revocation
Instrument
Physical Act
Operation of Law
Revocation By Instrument
Subsequent will revokes prior will
Revocation By Physical Act
Testator must perform physical act
To will w/ intent to revoke and
For purpose to revoke
CA Interlineation Revocation
In California, writing on face of
Will can constitute both altered provision and
Valid new disposition if meets requirements
Of holographic codicil
Revocation Of Codicil
Leaves remaining will valid, but Revocation of will revokes will and codicils Republication Operates as republication of will As of date on codicil
Revocation Of Duplicates
Revoked if one duplicate is destroyed, torn,
Burned, cancelled, or obliterated
W/ intent to revoke it
Revocation By Operation of Law
To accommodate unintentionally omitted
Spouse or child or domestic partner, or
To remove all devices to previous
Spouse/domestic partner after dissolution
Will Can’t Be Found
Presumed to be revoked
Dependent Relevant Revocation DRR
Equitable doctrine that disregards Testator’s last revocation if court Finds act of revocation based on Mistake of law or fact, and Revocation would not have occurred But for testator’s mistaken belief that Another disposition of property was valid
Exception to DRR
If amount of second, failed gift
Less than first, beneficiary takes
Nothing and it goes to residuary
Revival of Will/Trust
If second will that would have Revoked first will is thereby revoked First will stays revoked unless Evident from circumstances of revocation Testator intended first will to take effect
If second will that would have Revoked first will is thereby revoked By third will First will stays revoked unless Terms of third will show intention For first will to take effect
Extrinsic Evidence Revival
Permitted when revocation
Performed by physical act
Specific Gift
Gift of identifiable property
Stock Gift
If testator devises stock Owned stock at time of will, and Testator got more stock because of Stock dividend, merger, acquisition, or Drip, then devisee gets stock too
General Gift
Gift from general assets and
Does not include specific property
Demonstrative Gift
General gift that specifies property or
Particular fund gift should be made
Residuary
Remainder of estate
Ademption
Gives specific gift they no longer own
Beneficiary takes nothing
Statutory Exceptions Ademption
If item sold, beneficiary can receive
Unpaid money and note
If eminent domain, then unpaid money
If destroyed, unpaid insurance money
If a gift, note & testator forecloses
Beneficiary receives prop testator receives
Change in Form of Gift
Normally, substantial change in nature of
Subject matter will operate as ademption
But mere nominal or formal change will not
CA Change in Form of Gift
In California, testator’s intent at time
Disposed of subject matter of bequest considered
The courts will attempt to carry out testator’s intent
In California, when change in form of gift and
Evid proceeds from sale of original gift
Were used to acquire new asset
Court will find no ademption unless
Testator intended for original gift to fail
Satisfaction of Gift
Will provides for deduction of lifetime gift
Testator or benny declare in writing satisfied or
Same property is given during lifetime
Then gift will be satisfied
Abatement of Gift
Will gives away more than estate has Property not covered by will shall be reduced: Residuary gifts General gifts not to relatives General gifts to relatives Specific gifts not to relatives, and Specific gifts to relatives
Exoneration of Gift
Will gives gift w/ loan attached
Loan goes w/ gift unless
Appears from will or circumstances
Intention otherwise
Slayer Statute Will/Trust
Cannot take property from
When responsible for death
If intentional and felonious
CA: killer treated as predeceased
Elder Abuse Will/Trust
CA: someone convicted of financial
Exploitation, abuse, or neglect of person
Under care prohibited from taking
Lapse of Gift
If benny dies before testator,
Benny and heirs do not take
Anti-Lapse of Gift
If benny related to testator or
Testator’s spouse and
Dead prior to testator, then
Benny heirs take gift
Spouse/Partner Omitted
Receive intestate share if married After will made unless Intentionally omitted on face of will Provided for outside will w/ intent in lieu Waived right in valid agreement
Children Omitted
Receive intestate share if born or adopted
After will made unless
Intentionally omitted on face of will
Provided for outside will w/ intent in lieu
Had one or more children and devised
Substantially all estate to other
Parent of omitted child
CA Children Omitted
Protection extends to children who
Settlor believed to be deceased or
Settlor unaware of birth
No Contest Clause
Benny has 120 days from Date admitted to contest Invalid if Contesting on grounds of forgery Grounds of revocation or Grounds of fraud/undue influence Otherwise, benny contests and wins Ignored but if benny loses, then enforced
Intestate SP
Surviving spouse takes dependent on Living issue, parent, siblings, or issue of siblings No lineal or parents Whole estate One child Half of estate No child but parents or issue of parents Half of estate Two or more children One third of estate
Intestate Succession Order
Issue Parents Issue of parents Grandparents Issue of grandparents Issue of predeceased spouse/partner Next of kin Parents of predeceased spouse Issue of parents of predeceased spouse Escheats
Per Capita Taking
If takers unequal degree
Start w/ first living generation
Per Stirpes Taking
If takers unequal degree
Start w/ first generation
Intestate Parent-Child
Exists for natural or adopted children
Intestate Step Parents
Party may inherit from natural if
Biological parent lived w/ child or
Biological parent was married to
Other biological parent and died before birth
And spouse of biological parent adopts child
Intestate Intent to Adopt
Relationship began during child’s minority
Continued throughout lifetime and
Legal barrier prevented adoption
120 Hour Rule
Fails to survive by 120 hours
Deemed to be predeceased for purposes of intestate succession
Survival proved by clear and convincing evid
Advancement of Gift
Gives benny prop during lifetime
Treated as advancement against share if
Decedent stated in writing advancement or
Heir stated in writing advancement or
Neither used “advancement” but their intent
Calculation of Advancement of Gift
Total Estate = Net estate + Advancements (adv)
Allocate under intestate succession
Amt Heir Takes = Allocation of estate - Adv
If negative:
Total Estate = Net estate + (adv - excess adv)
Allocation under estate (minus those who received excess)
Amt Heir Takes without excess adv = alloc of estate- adv
Disclaimer of Gift
Rejection of interest May disclaim if in writing, signed States who creator of interest is What property person is disclaiming, and Filed w/in reasonable time Cannot disclaim before interest exists
Contracts Relating to Wills
Will states material provisions of k
Express reference in will,
Signed writing by decedent, or
Clear and convincing evid of agreement
