Wills Flashcards
Will Validity
A will is valid in California if executed in accordance with:
(i) California law,
(ii) The law of the state where executed, or
(iii) The law of the state where the testator is domiciled at death
Attested Wills
For an attested will to be valid in California:
(i) it must be in writing,
(ii) it must be signed by the testator,
(iii) the testator’s signing or acknowledgment of his signature or will must occur in the joint presence of at least two witnesses who sign the instrument during the testator’s lifetime, and
(iv) the witness must understand that the instrument is the testator’s will.
Interested Witness
In California, an interested witness is competent and does not affect the validity of the will, but a presumption arises that she procured the devise by duress, menace, fraud, or undue influence
Harmless Error
If a will is not executed in compliance with the witnessing requirements, it may nevertheless be admitted to probate if the proponent of the will establishes by clear and convincing evidence that at the time the testator signed the document he intended it to constitute his will.
Holographic Will
A holographic will is one that is handwritten and signed by the testator but has no witness. California recognizes holographic wills and codicils. Although it is sometimes stated that the entire will must be in the testator’s handwriting, a holographic will is valid if the signature and material provisions are in the testator’s handwriting.
Testamentary capacity
California courts recognize a presumption that the testator was sane. The burden of introducing evidence to the contrary is on the contestant. It the contestant introduces evidence sufficient, if believed, to warrant a finding of mental incapacity, the presumption drops and the proponent must then introduce evidence of capacity.
The capacity required for making a will is a different and lower standard of capacity than that required to make a contract. To have mental capacity to make a will, the testator must have the ability to understand:
(i) the nature of his act,
(ii) the extent of his property, and
(iii) the persons who are the natural objects of his bounty.
Undue Influence
A will is invalid if obtained through undue influence (mental or physical coercion that deprives the testator of his free will and substitutes the desires of another for his).
To establish undue influence, the contestants must establish that:
(i) influence was exerted on the testator,
(ii) the effect of the influence was to overpower the mind and free will of the testator,
(iii) the product of the influence was a will that would not have been executed but for the influence.
The contestants have the burden of proof. Undue influence is usually proved by circumstantial evidence, which generally requires showing a number of factors that, when combined, justify the inference of undue influence.
Undue Influence (Prima Facie Case)
Factors indicating undue influence include:
(i) opportunity to exert influence,
(ii) the susceptibility of the testator,
(iii) whether the beneficiary was active in procuring the will,
(iv) whether the disposition in the will are at variance with the expressed intentions of the testator, and
(v) whether the will provisions seem unnatural (a gift is unnatural if it favors a stranger over the natural objects of a testator’s bounty).
Undue Influence (Common law presumption)
A presumption of undue influence arises when:
(i) the testator and beneficiary are in a confidential relationship,
(ii) the beneficiary participated in procuring the will, and
(iii) the will provisions are unnatural and favor the alleged influencer. The presumption shifts the burden of proof to the will proponent.
Undue Influence (Statutory presumption)
A statutory presumption arises when a donative transfer is made to:
(i) the person who drafted the instrument,
(ii) a person who transcribed the instrument and was in a fiduciary relationship with the testator when the instrument was transcribed, or
(iii) a testator’s care custodian.
Revocation of Wills
A testator can revoke a will by burning, tearing, canceling, destroying, or obliterating it, with the intent to revoke. To revoke by tearing, the will must be torn though some material part.
Revival
A will revoked by a subsequent instrument that itself is revoked is revived if the testator so intends. A will still in physical existence may be revived through publication of a subsequent codicil, but a will revoked by physical destruction cannot be so revived.
Revocation of Codicils
The intention to revoke a codicil must be concurrent with the physical act. If cancellation takes place on a material part of the codicil or at least “touches the words of the codicil,” the codicil is revoked by physical act. An act of revocation performed upon a codicil does not revoke the will, even if the testator so intended.
Integration
A will consists of all papers actually present at the time of execution that the testator intended to constitute his will. The requisite intent and presence of the papers at execution are presumed when there is a physical connection of the papers. Extrinsic evidence also is admissible to show intent.
Incorporation by reference
To incorporate a document by reference, the testator must so intend and it must be:
(i) in existence at the will’s execution,
(ii) sufficiently described in the will, and
(iii) proved to be the one described in the will
