Wills Flashcards
Wills - Choice of Law
CA law validates wills not made in CA if executed in accordance with 1) CA law, 2) law of the state where executed, or 3) law of place of T’s domicile at execution. Here, (always look to bring back to CA law)
Attested Wills
A formal attested will must be 1) in writing, 2) signed by the testator (or by another person in T’s presence and a T’s direction or by a conservator), 3) with acknowledgment of T’s signing by the joint presence of two witnesses, and 4) the W’s must understand it is a will and sign the will within a reasonable time after witnessing. Here,
Attested Will - CA Clear and Convincing Standard (2009)
If T died after 2009, and if the elements of a formal attested will are NOT met, the court may still admit the will into probate if by clear and convincing evidence it can be shown the T signed the will and intended it to be his will. Here,
Attested Will - Interested Witnesses
Under CA law, if one of the two witnesses is a beneficiary of the will (interested witness), the will is valid, but it creates a presumption that the interested witness procured the gift by duress, fraud, or undue influence. Thus, if the W fails to rebut this presumption, W’s gift will fail and the W will take only his intestate share. Here,
Holographic Wills
A HW is a handwritten will. It is valid if all material provisions are in the T’s handwriting and it must be signed and dated by T. Material provisions include the gifts made and the names of beneficiaries. Here,
Testamentary Intent
For an alleged will to be valid, the testator must have had the intention to make the particular instrument her will. Precatory words are insufficient. Wills fail for the lack of intent if 1) T lacked capacity, 2) T suffered from an insane delusion, 3) T was a victim of fraud, or 4) T was a victim of undue influence. Here,
Testamentary Intent - Capacity
T must have capacity at the time he executed his will. Capacity is shown if T is 1) over age 18, 2) understands the nature of the act, 3) knows the approximate value of his property, 4) knows the natural objects of his bounty. This is a low bar. If T lacks capacity the entire will is invalid and property will pass intestate. Here,
Testamentary Intent - Insane Delusion
At the time of execution, T had a false belief that was the product of a sick mind, the idea was unsupported by fact, and T’s delusion affected T’s will. (i.e. H thinks his wife is cheating with no basis). Only the part of the will affected by the insane delusion will be invalid and will go to the residuary devisee. Here,
Testamentary Intent - Fraud
Fraud is a representation of a material fact, known by the wrongdoer to be false, for the purpose of inducing the action/inaction and the T in fact relies on the representation. Fraud can be in the execution, inducement, or in preventing revocation:
Testamentary Intent - Fraud: Execution
If the document or signature is fraudulent the entire will is invalid and the property goes through intestate succession. Here,
Testamentary Intent - Fraud: Inducement
If the contents are obtained by fraud, only the fraudulent party will be affected and placed into a constructive trust. Here,
Testamentary Intent - Fraud: Revocation
If fraud is used to prevent T from revoking a will, the will is probated and a constructive trust is used to transfer to the intended beneficiary. Here,
Testamentary Intent - Undue Influence
In determining if T’s agency was subjugated, courts will look to 1) susceptibility, 2) opportunity, 3) wrongful act, and 4) unnatural result. Under CL, undue influence is presumed if a confidential relationship exists between T and wrongdoer (e.g. attorney-client, trustee-beneficiary, close friends). In CA, undue influence is presumed by statute if the beneficiary is the drafter, or a caretaker of T who did not have a prior relationship with T. Here,
Components of a Will
Documents outside the will may be allowed to be probated, providing certain requirements are met. Codicils are modifications to an existing will.
Components: Integration
All papers actually present at execution are integrated into the will if the T intended the papers to be a single will. Intent is shown by a physical or logical connection between the will and the papers. Here,
Components: Incorporation by Reference
Any non-integrated document may be incorporated into the will by reference if 1) the document was in existence on the date of the will, 2) clearly identified in the will, and 3) T intended the document to be in the will. Here,
Components: Facts of Independent Significance
Gaps in a will can be filled in by referring to facts or documents executed during T’s lifetime for a primarily non-testamentary motive. E.g. “I leave belongings to my church” - the beneficiary is not named but the church can be determined through parol evidence. Here,
Components: Codicil (re-analyze formation, revocation, DDR, and all 3 will component issues)
A codicil is a testamentary instrument meant to modify or revoke an earlier will and must be executed with the same formalities as a will (attested or holographic). A will is deemed republished on the date of the codicil. Here,
Components: Codicil - Interlineation
A writing between the lines revokes the altered part of the will if it is an attested will (holographic will OK). However, under the DRR the revoked portion may be re-validated if T’s intent can be determined. But if the interlineation is for a lesser amount of money, then DRR does not apply and that portion is invalid. Further, cancellation of one beneficiary does not increase the share of a co-beneficiary. Here,
