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
