Wills Flashcards
Capacity
At the time of execution, the testator must [1] be at least 18 years of age. [2] be able to understand the extent of her property. [3] know the natural objects of her bounty. [4] know the nature of her act: [a] must know that she is executing a will. [b] However, does not have to know all of the legal technicalities of the will.
Consequences of incapacity
Entire will is invalid.
- Property, therefore, will pass by intestate succession.
- Exception: If testator had a valid prior will that was purportedly revoked by a second will, (the one for which testator did not have capacity), then the first instrument will be probated because if testator did not have capacity, the second will could in no way have revoked the first.
The Insane Delusion
- A will can also be attacked if at the time of execution the testator was suffering from an insane delusion.
- Four elements needed to establish testator was suffering from an
[1] T had a false belief
[2] that belief was of a sick mind
[3] Thereisnoevidencetosupportthebelief, not even a scintilla of evidence.
[4] Delusion must have affected testator’s will.
Consequences of finding an insane delusion
Only the part of the will that was affected by the delusion is invalid.
As to that part, it will go to the residuary devisee, or if none, or if the residue itself was infected by the delusion, by intestate succession.
What is the residuary gift?
- The residuary gift is that part of the estate not otherwise expressly disposed of in the will.
- For example, the will reads, “Blackacre to A, Whiteacre to B, and the residue to C.” C is the residuary devisee. C gets the balance of testator’s estate. C’s gift may be worth $1 or S1 billion.
- Fraud - elements
- There must be a representation;
- Of material fact;
- Known to be false by the wrongdoer;
- For the purpose of inducing action or inaction; and
- In fact induces the action or inaction desired.
Fraud in the execution
- Someone forges T’s signature to a will
- Testator is given a document to sign that purportedly is non-testamentary in nature, but in fact it is, and testator signs it.
Consequence:
Entire will is invalid.
[a] Thus, the property passes by intestate succession, unless there is prior will that was validly executed.
[b] If there was a prior will that was validly executed, the instant will, as a consequence of the fraud, could in no way have revoked the prior valid will.
Fraud in the inducement
Wrongdoers representation affects the content of the will.
Consequence:
Only the part of the will affected by the fraud is invalidated.
As to that part the court can:
- Give the property to the residuary devisees, if any; or
- If there is no residue, to the heirs at law by intestate succession; or
- Constructive trust remedy. The court will deny probate to the portion of the will induced by fraud and allow the property to go either to the residuary devisees or the heirs at law (see above) and them make those devisees or heirs a constructive trustee. The constructive trustee has one duty: to transfer the property to the intended beneficiary, as determined by the court.
Fraud in preventing testator from revoking
[1] This is a variation of fraud in the inducement.
[2] Example: Testator’s will leaves everything to son, but testator later changes her mind and wants to leave everything to charity. Due to son’s fraud (the lie that the charity is being investigated by the FBI) testator does not revoke the will. Because of the fraud, there is no revocation.
Consequences:
The court will not probate the will; the will goes to heirs.
Simultaneously, the court also will decree that the heir is a constructive trustee who has one duty: to transfer the property to the intended beneficiary as determined by the court.
Undue influence
Established in three ways:
- Prima Facie Case
- Case Law Presumption
- Statutory Presumption
Undue influence - prima facie case
- Susceptibility: Testator has a weakness such that he is able to have his free will subjugated.
- Opportunity: the wrongdoer had access to the testator. If the wrongdoer is testator’s friend, business associate, etc. there is always access. On the bar exam, opportunity just needs to be stated as part of the rule, but it is never an element in dispute.
- Active participation: it is the wrongful act that gets the gift. i.e. the wrongdoer’s use of force.
- An unnatural result: the wrongdoer is taking a devise, and this person ordinarily would not be expected to take devise. Typically, no relationship to testator.
Case Law Presumption
- A confidential relationship exists between testator and the
wrongdoer (attorney-client etc.)
- Active participation.
- Unnatural result.
Consequences of finding undue influence
The part affected goes to
The residuary devisees if any, or, if none;
To the heirs at law by intestate succession; or
Via constructive trust remedy: The tainted part of the will goes to the residuary devisees, if any, or if none to the heirs at law. Simultaneously, the residuary devisees or heirs are made constructive trustees (on the ground of preventing unjust enrichment) who have only one duty: to transfer the property to the intended beneficiary.
- Statutory Presumption of Undue Influence
California law statutorily presumes that a provision of an instrument (will, trust, or deed) making a donative transfer to the following persons is the product of undue influence:
- The person who drafted or transcribed the instrument; or
- A care custodian (e.g. nurse) of a transferor who is a “dependent adult” (one unable to provide for his or her personal needs, or had difficulty managing his or her financial affairs); or
- A person who is a spouse, domestic partner, blood relative, cohabitant, or employee of a person described in the above.
The statutory presumption does not apply to:
- A donative transfer to a person who is the spouse, domestic partner, cohabitant, or blood relative of the transferor ; or
- An instrument that is drafted or transcribed by a person who is the spouse, domestic partner, cohabitant, or blood relative of the transferor, or
- An instrument reviewed by an independent attorney; or
- A transfer that does not exceed $5,000, if the estate is over $100,000 (i.e., a “small” gift when there is a “big” estate).
Consequences of finding undue influence under the statutory presumption:
[a] The transferee is deemed to have predeceased the transferor without spouse, domestic partner, or issue. Thus, the gift “lapses” or fails, meaning that the transferee does not take.
[b] As to that lapsed gift, it passes to the residuary devisee if any, or, if no residue, or if the lapsed gift is itself the residue, to the heirs at law by intestate succession.
Mistake in Content
Testator’s will names the wrong beneficiary or makes the wrong gift due to an accidental omission or an accidental addition.
Based on Estate of Duke, for any mistake in content, whether by omission or addition, the court may reform or rewrite the will to conform it to testator’s intent.
- Mistake in Execution
The testator signs the wrong document.
First situation: Testator mistakenly signs his will believing it is a non-testamentary instrument.
Consequence: the will is not probated because testator did not intend the document to be a will.
Second situation: Reciprocal wills or mutual wills: when you have 2 testators, each with his or her own will and each leaves everything to the other.
Consequence: the court may reform the will.
Mistake in Description (Ambiguity)
Two persons fit the description. Two things fit the description. Nothing fits the description.
Consequences:
Latent ambiguity: on the face of the will there is no problem. You introduce parol evidence to establish the ambiguity, then you introduce the evidence a second time to determine testator’s intent .
Patent ambiguity: the ambiguity is apparent on the face of the will (i.e. “I have two cousins by the name of John; I leave $1,000 to my cousin John.”). Some older cases stated that no remedy is given in the case of a patent ambiguity.
In California, by statute, introduce parol evidence for any type of ambiguity— latent or patent—to determine what testator’s intent was.
Mistake in the Validity of a Subsequent Testamentary Instrument (Dependent Relative Revocation)
Rule for Dependent Relative Revocation:
- If testator revokes her will, or a portion thereof,
- in the mistaken belief that a substantially identical will or codicil effectuates her intent,
- then, by operation of law,
- the revocation of the first, will be deemed conditional, dependent, and relative to the second effectuating testator’s intent.
- If the second does not effectuate testator’s intent, the first (by pure legal fiction) was never revoked.
**If Will #1 is revoked by physical act by being destroyed (thus, Will #1 no longer exists), Will #1 can still be probated under California’s lost will provisions:
- These provisions state that a lost will or accidentally destroyed will can be probated if at least one witness testifies as to the terms of the will.
- The witness does not necessarily have to be one of the attesting witnesses.
***The heart of DRR is that [i] testator executes Will #l, [ii] then executes Will #2 and [iii] subsequently revokes Will #1, thinking that Will #2 effectuates his intent. But testator is mistaken. Will #2 either is invalid as a will, or, if it is valid as a will, fails to effectuate testator’s intent. DRR allows the court to ignore the revocation of Will #1 on the grounds that testator revoked Will #l because testator mistakenly believed Will #2 effectuated his intent.
Mistake Regarding Living Children (Pretermission)
A child is pretermitted if born or adopted after all testamentary instruments (will, codicil, and a revocable inter-vivos trust) are executed and not provided for in any testamentary instrument. A pretermitted child takes an intestate share of the estate (which includes the assets in testator’s inter-vivos trust).
A child born or adopted before all testamentary instruments are executed and not provided for in any instrument is not pretermitted. Of course, such a child takes nothing.
Exception: A child born or adopted before all testamentary instruments are executed and not provided for in any of the instruments is treated as if pretermitted i_f the only reason the child was not provided for in the testamentary instrument is because testator erroneously thought the child to be dead or not existent._
Integration
Two elements required for papers to be integrated:
[1] Intent: Testator must have intended for the papers in question to be part of the will; and
[2) Presence: The paper must have been actually or physically present at the time of execution.
Proving integration: 2 different ways:
- Establish a physical connection among all the pages: If the papers are stapled together, it is inferred that testator intended the papers to be part of the will and were physically present at the time of execution.
- Establish a logical connection: Does the last word on page 1 make sense in relation to the first word on page 2? If so, integration is inferred.
- Incorporation by Reference
A non-integrated writing is given testamentary effect and becomes part of the will. As such, it is now admitted into probate.
Example: Testator’s will states, “I leave my property to the grantee named on the ABC deed.”
Four Elements:
- A document or writing;
- The document must be clearly identified in the will
- The document or writing must have been in existence when the will was executed; and
- Testator must have intended to incorporate the document into the will.
- Facts of Independent Significance
Who a beneficiary is, or what gift is given, may be given meaning by facts of significance independent from testator’s will.
Facts of independent legal significance allow us to fill in the blanks using parol evidence rule.
Ask: Even without the will, would this still exist?
Example: Testator’s will states, “I leave my car to John.” The car is fact of independent significance. At testator’s death, John will take whatever car testator owned because people own cars for many reasons, none of which have anything to do with the law of wills.
Independent significance will not work when testator states he will leave all his property to people named in a note because without the will, this note would not exist. The note is not a fact of independent significance.
Writing Disposing of Limited Tangible Personal Property
Under California Probate Code section 6132, a writing, whether or not it can be incorporated by reference or is a fact of independent significance, may be admitted into probate and, thus, given testamentary effect.
4 elements needed under section 6132:
- The writing must be (i) referred to in the will, (ii) dated, and (iii) either signed or handwritten by the testator
(but even if the writing is not dated or neither handwritten nor signed by the testator, the writing can still be admitted into probate and given testamentary effect if extrinsic evidence establishes the testator’s intent regarding disposifion of the items described in the referenced writing);
- The writing must describe the items and recipients (beneflciaries) with reasonable certainty;
- The writing may be executed before or after the will;
- The writing directs the disposition of tangible personal property (excluding cash and property used primarily in a trade or business) valued, at the time of testator’s death, at not more than $5,000 per item and not more than $25,000 in the aggregate.
Example: Testator’s will atates: “1 give my car to the person who is identified on a note I executed yesterday.” The writing (i.e. the note), signed and dated by testator, Rtates: “2003 Honda CR-V: Mary Jones.” At the time of testator’s death, the car is not business property and is worth not more than $5,000. On the bar exam, discuss whether the writing can be admitted into probate, thus allowing Mary to take the gift, on three theories: Incorporation by reference; Facts of independent significance; Section 6132.
- Pour—Over Wills
Part or all of testator’s estate is devised to the trustee of the inter-vivos trust, to be administered pursuant to the terms of that trust.
Ways to validate the pour-over provision:
- Incorporation by reference.
- Independent Significance.
- Uniform Testamentary Additions to Trusts Act (UTATA):
- So long as you have a valid trust, which was in existence before the will was executed, or at the time of execution, the pour-over provision is valid by statute.
- The pour-over provision is valid simply because the stature says it is valid.
Elements for an Attested Will
- Will must be in writing
- The will must be signed by one of the following three people: Testator; A third person, in testator’s presence and at testator’s direction; By a conservator pursuant to a court order.
- The signing by testator, the third person, or the conservator must be done in the presence of two witnesses, both present at the same time.
If testator had previously signed alone or in the presence of just one of the witnesses, testator simply acknowledge his signature or acknowledges the will, in the presence of the two witnesses, both present at the same time.
- The witnesses must sign the will during the
testator’s lifetime.
- The witnesses understand they are signing testator’s will.
IF THERE IS A PROBLEM WITH COMPLIANCE UNDER “TRADITIONAL FORMALITIES” APPROACH, USE C7C STANDARD:
If the will does not satisfy elements 3, 4, or 5, of the “traditional formalities” approach, under California’s harmless error rule, the will can still be admitted into probate if the proponent of the will establishes by “clear and convincing evidence” that at the time the testator signed the will, he or she intended the will to constitute his or her will.
Elements for an Attested Will - Miscalenious
- Witnesses do not have to sign in the presence of each other.
- Witnesses do not have to sign in the presence of testator.
- Testator does not have to declare to the witnesses, ’this is my will” because California does not have a so-called “publication” requirement. Nonetheless, something about the execution process must convey to the witnesses the information necessary for them to understand that the document being signed is the testator’s will. (But even if the witnesses do not understand that the document is testator’s will, under the “clear and convincing” standard, this should not be a problem.)
- Neither testator nor the witnesses have to sign at the end of the will: Signing anywhere on the will is okay in California.
- Must the Testator Sign the will before the witnesses?
“If there is no issue of fraud or mistake, the will should be deemed valid under California’s ’substantial compliance’ doctrine (that is, if there is no fraud or mistake, the will is validly executed if there is substantial compliance with the Probate Code, even if not literal compliance)
- Presence:
Sight presence: The witnesses see testator sign; or
Conscious presence: Testator signs or acknowledges within the witnesses hearing and the witnesses know what is being done.
Elements for an Attested Will - Interested witness
The will is not invalid. But unless there are two other disinterested witnesses, a presumption arises that the witness-beneficiary secured the gift by wrongdoing.
If witness-beneficiary rebuts the presumption of wrongdoing: witness-beneficiary takes the gift.
If witness-beneaciary cannot rebut the presumption of wrongdoing, he or she takes the amount as does not exceed what would be given by intestacy.
The presumption of wrongdoing is inapplicable if witness-beneficiary is taking only in a fiduciary capacity, i.e. as trustee.
- Conditional Wills
A conditional will is one whose validity is made conditional by its own terms.
Elements for a Valid Holograph
- signed by testator
- material provisions in testator’s handwriting
- The “material provisions” are: (a) the gifts made, and (b) the beneficiaries’ names.
- Introductory clauses: are not material terms.
- Appointment of an executor: is not material because the court can appoint an administrator.
- If witnesses sign, their signatures are superfluous and, therefore, irrelevant.
Holograph - Testamentary intent
In a holographic will, a statement of testamentary intent (“This is my last will”) need not be on the face of the will and in testator’s handwriting.
- Extrinsic evidence is admissible to determine testamentary intent. i.e. when a list or a series of letters.
- “Any statement of testamentary intent contained in a holographic will may be set forth either in the testator’s own handwriting or as part of a commercially printed form will.” (Cal. Prob. Code section 6111(c).]
Holograph - dates
A date is not required.
But lack of a date can create a problems:
- If an undated holograph is inconsistent with the provisions of another will (either a dated holographic will, a dated witnessed will, or an undated witnessed will), the undated holograph is invalid to the extent of the inconsistency, unless the undated holograph’s time of execution is established to be after the date of execution of the other will. ***** If there are two undated holography, and you can’t establish which one came last, neither holograph is probated to the extent of the inconsistency.
- If a holograph is undated, and if it is established that the testator lacked testamentary capacity at any time during which the will mig**ht have been executed, the holograph is invalid— unless it is established that it was executed at a time when the testator had testamentary capacity.
Choice of Law
The will can be admitted into probate in California if any one of the following three rules is satisfied:
[1] If the will complies with California’s formalities of execution, the will is admitted into probate in California.
[2] If the will does not comply with the formalities of execution under California law, but it complies with the formalities of execution of the place where the will was executed, the will is admitted into probate in California.
[3] If the will does not comply with any of the above but it complies with formalities of execution of the place where testator is domiciled at the time of execution, the will is admitted into probate in California.
Codicil - Republication
- A codicil republishes a will = causes the will to speak from the date that the codicil is executed on
- Republication comes into play in two scenarios:
- Pour-over wills and incorporation by reference:
Example: On January 1, testator executes an inter-vivos trust. On January 2, testator executes a will with a pour-over provision. On January 3, the trust is amended. On these facts, incorporation by reference will not work because the trust as modified was not in existence was executed. On January 4, testator executes a codicil, which republishes the will. Because the codicil republishes the will, the codicil causes the will to speak from January 4. Thus, incorporation by reference now works because the trust as modified was in existence on the date that the will is deemed executed, which now is January 4.
- Pretermission problems:
Example: Year 1 the will is executed (everything to charity). Year 2 child is born or testator marries or enters into a domestic partnership (child, spouse, or domestic partner is pretermitted). Year 3 a codicil is executed which republishes the will. Because the codicil republishes the will, the will now speaks from Year 3. As such, there is no pretermission because the birth, marriage, or domestic partnership is deemed to have taken place before the will was executed.
***Note that there is an alternative theory to prevent pretermission on the facts given in the above example: Because a codicil is deemed to be a testamentary instrument, the birth of the child or marriage or domestic partnership took place before the codicil was executed. This alone (without any discussion of republication) precludes the finding of a pretermission.
- Revocation of Codicils
[1] If testator executes a will, then executes a codicil, and subsequently revokes his codicil, there is a rebuttable presumption that testator intended to revoke only his codicil.
[2] If testator executes a will, then executes a codicil, and testator subsequently revokes the will, there is a rebuttable presumption that testator intended to revoke the will and codicil.
Elements for Revocation by Physical Act
- Will must be burned, torn, canceled (lining out or crossing out with a pen or pencil), destroyed, or obliterated.
- Testator must have the simultaneous intent to revoke.
- The act must be done either by testator, or by someone in testator’s presence and at his direction.
- Cancellations and Interlineations - example
- T executes a typed formal (attested) will that states, “I leave $1,000 to Mary.” T then takes his pen, crosses out the $1,000 and interlineates”’$1,500”just above the $1,000. T signs his name.
- The $1,500 gift is invalid as a holograph because the material provisions (gifts and names of the beneficiaries) are not in testator’s own handwriting.
- Moreover, the $1,000 gift has been revoked by physical act (cancellation).
- But in a little twist to our traditional view of dependent relative revocation (DRR) (we previously stated that the two documents must be very similar), we can save Mary’s gift so that Mary takes the original $1,000:
- The revocation of the $1,000 was conditional, dependent, and relative to the $1,500 being effective.
- Because the $1,500 was not effective, by operation of law, the $1,000 was never revoked.
- But compare: If the original gift to Mary was $1,500 and testator cancelled this out and the interlineation was $1,000, can DRR be used to give Mary the original $1,500?When the interlineation is less than the cancelled provision, DRR will not be used.
- NOTE: with holographic wills, the interlineation means we have a revocation of the $1,000 by physical act (crossing out) and a valid new disposition:
Cancellation to increase a gift.
- Cancellation to increase a gift is prohibited.
- Example: “I leave my farm to X and Y.” Testator subsequently cancels out Y’s name. What does X take?
- X takes 1/2 of the farm. The other ½ goes to the residuary devisees or, if none, by intestacy.
- An interlineation or other handwritten addition to a typed (attested) will that does not qualify as a holographic codicil may nonetheless be a valid cancellation.
Example: Testator executes a valid typed formal will. Subsequently testator writes ‘full and Void” across the face of the will.
- Without a signature accompanying this ‘Null and Void” addition, the addition cannot be deemed a holographic codicil to the typed formal will.
- Nonetheless, writing “Null and Void,” even without a signature, is a valid cancellation of the typed formal will.
Duplicate Wills
If testator, or someone in testator’s presence and at his direction, revokes by physical act one of the duplicate originals, then the other duplicate original also is revoked, as a mater of law.
Mutilated Wills
If a will is found in a mutilated condition at testator’s death, and when last seen it was in testator’s possession, there is a rebuttable presumption that testator mutilated the will with intent to revoke it.
Revival
When testator executes Will #2, which revokes #1 and revokes Will #2 by physical act,
Will #1 is not automatically revived; rather, Will #1 is revived only if testator manifests an intent to revive Will #1. Oral statements by testator at the time Will #2 was revoked are admissible.
When testator executes Will #2, which revokes #1 and revokes Will #2 by subsequent instrument (codicil).
Will #1 is not revived, unless it appears from the terms of the codicil that testator wanted Will #1 revived.
Consequence of finding an omitted/pretermitted child
The child receives an intestate share of assets decedent owned at death plus the assets held in any intervivos trust.
For the child to take this statutory share, other gifts will have to be abated or reduced. Hence, revocation by operation of law.
Exceptions: if any of the following exceptions exist, the child will not take this statutory share:
- Decedent’s failure to provide for the child in any testamentary instrument was intentional, and the intent is apparent
- At the time of execution of the testamentary instrument, the decadent had one or more children and transferred by will or revocable inter vivos trust substantially all of his estate to the parent of the omitted child.
- The decedent provided for the child by transfer outside the testamentary instrument with the intention that the transfer is to be in lieu of any testamentary provision.
Consequence of finding an omitted spouse
The omitted spouse receives a statutory share of assets decadent owned at death plus the assets held in any revocable inter vivos trust. This statutory share that the omitted spouse receives is as follows:
- 1/2 of the community property owned by the decadent at death or in any revocable inter vivos trust (thus, because the omitted spouse already owned the other one-half, the omitted spouse now ends up with 100% of the community property).
- 1/2 of the quasi-community property owned by decedent at death or in any revocable inter vivos trust (thus, because ae omitted spouse already owned the other one-half, the omitted spouse now ends up with 100% of the quasi-community property).
- A share of the separate property of the decedent equal in value to that which the spouse would have received if the decadent had died without ever having executed any testamentary instrument (will or trust), but in no event is the share to be more than 1/2 the value of the separate property in the estate.
- For the omitted Spouse to take this statutory share, other gifts will have to be abated (reduced). Hence, revocation by operation of law.
Exceptions: If any apply, the omitted spouse will not take the statutory share:
- Apparent intent to disinherit.
- Decedent provided for the spouse by transfer outside of the testamentary instruments with the intention that the transfer be in lieu of any testamentary provision.
- Omitted spouse signed a waiver.
3 elements for a waiver:
(a) Waiver must be in writing, signed by the waiving spouse before or during marriage;
(b) Waiving spouse represented by an independent counsel; and
(c) Full disclosure by decedent of decedent’s finances.
–> But even if there is no disclosure by the testator or independent counsel by the waiving spouse, the waiver still is enforceable if
[1] the waiving spouse had or should have had knowledge of the testator’s finances, or
[ii] if the waiver was in fact fair.
–> But in no event will the weaver be enforced if the waiver is unconscionable.
