Wills Flashcards
Wills formally executed
P.L.U.S.
Presence*
(testator must sign his will in the joint presence of 2 witnesses)
Lifetime
(witnesses must sign during testator’s lifetime- witnesses don’t have to sign in presence of eachother or of testator)
Understand
(rarely tested)
Signed
(signed by testator, conservator pursuant to a court order, another person may sign testator’s name as long as its in the testator’s presence and at the testator’s direction)
proponent
the proponent of the will is the person who wants to enter the will into probate
Substantial compliance doctrine*
-when fails PLUS
must establish by clear and convincing evidence (75%) that TESTATOR INTENDED that was the will (at the time the testator signed he will, the testator intended the document constitute a will)
conservator
makes decision for another
just because they have a conservator doesn’t mean they can’t make a will
can make some decisions but not others
the standard:
whether the conservatee/testator has the ability to understand the transaction
can make or revoke a will made by a conservator
interested witness
a beneficiary
one of the witnesses who signed is a beneficiary
it’s allowed
but presumption of undue influence
if the witness fails to rebut the presumption, the witness can still take up her intestate share but no more
doesn’t apply to trustee’s or executors- beneficiaries receive gifts. trustees/executors are compensated therefore taking a fiduciary capacity
holographic wills
handwritten wills
**tested
1) testator’s handwriting
2) material provisions:
[the gifts and the names of the beneficiaries must be in testator’s handwriting
3) and signed by Testator
codicil
an amendment to the will
therefore, must be executed in the same way as a will
either formally executed (PLUS) or holographic (written)
Choice of law
rarely tested
-- someone will execute a will outside of California, will won't be in accordance will CA requirements, but CA says its fine. more likely than not valid-- - where T executed the will - T was domiciled when it was executed - T domiciled at death - got to be valid in one of those three
EXAMPLE: T signed his will in front of W1 and W2. W1 signed immediately. w2 signed the next day
the will is validly executed
because T signed the will in the joint presence of two witnesses
The fact that w2 signed her name the next day isn’t relevant because the W’s don’t have to sign in the presence of eachother. They just both need to be present when T signs the will or acknowledges his signature
EXAMPLE: T signed his will while he was alone. The next day, in front of two witnesses, T acknowledged his signature on the will and both witnesses signed
The will was validly executed
because T acknowledged his signature in the “joint presence” of two W’s
EXAMPLE: T typed up a will and asked two friends to act as Ws. W1 was present when T signed his name. W1 then signed her name and left the room. Immediately thereafter, w2 came into the room and signed the will
the will was not formally executed
because T signed his will in the presence of only 1 witness
NOTE: the will may be saved by the substantial compliance doctrine
EXAMPLE: T signed his will in front of W1. W1 signed as a witness. The next day, T showed W2 his will and acknowledged his signature. w2 then signed as a W
the will was NOT formally executed
because T did not sign or acknowledge his signature in the “joint presence” of two W’s
NOTE: the will may be saved by the substantial compliance doctrine
Revocation*
- physical act
- subsequent instrument
- by law (least likely tested) (divorce)
Divorce revokes all will provisions in favor of the former spouse unless the will provides otherwise
Revocation by physical act
- intent to revoke
- obliterate, destroy, burn, torn, cancel
someone else do it for you?
1. in T’s presence
2. at T’s direction
(in bar: T will call Lawyer and tell L to rip it up. won’t work cause not in presence)
Duplicate will revocation?
if you revoke one you revoke both
increase of a will?
needs to have formal execution (PLUS) and for holographic will you need material terms.
example:
typewritten:
to barbra: 10,000
crossed out now:
to barbra (typed): 18,000
decrease of will?
totally fine
revocation by subsequent instrument
you can expressly revoke
in whole or in part
implied revocation
inconsistent/contradictory
essay tip for wills:
make sure to focus on the testators intent. focus on T’s INTENT when writing essay**
will after divorce
will revoke all provisions of gifts going to former spouse
Revival
not likely tested
two scenarios:
- will 1
will 2 (revokes 1st by subsequent instrument)
physical act to revoke 2
–> 1st will revived if that was T’s INTENT
extrinsic evidence allowed
2. will 1 will 2 (revokes 1) will 3 (revokes 2) ---> will 1 revived ONLY if it appears from the terms of the will that the T INTENDED the first to take effect.
extrinsic evidence not allowed
for both scenarios: if the first will was revoked by physical act –? can not revive! (rationale: can’t revive a will that’s not in existence)
DRR
cancels a mistaken revocation
undoes a mistake
revokes will upon mistaken belief that a new disposition of property would be effective
but for this mistake, T would not have revoked this first will
DRR cancels revocation and allowed revoked will to remain in effect
comes down to a matter of intent***
DRR court options
- reinstate first will
- intestacy
whatever is closer to T’s intent
when DRR will be tested:
will 1 (physical act but duplicate somewhere) will 2 is improperly executed for some reason
court can’t execute will2 because not properly executed
components of a will
- integration
- incorporation by reference
- acts of independent significance
integration
court can include all papers that are present at the time T executes the will
as long as they show some sort of unity then can add/combine
Incorporation by reference
a will can:
- writing
- in existence **(when will executed)
- sufficiently describes
- language of the will describes the T’s intent (to incorporate by reference)
acts of independent significance
not highly tested
a will may dispose of property by reference to acts that have significance apart from their effect on the will
act must be done by primarily nontestementary motives
interpretation and construction
a will speaks at the testator’s death but is construed in light of the circumstances as they existed at the time the testator executed his will
Lapse
(on MBE’s cause real property concept)
beneficiary dies before the testator
then the gift lapses and falls into the residue
anti-lapse*
California Statute- so not on MBE
saves a gift
two conditions:
- beneficiary has to be a blood relative
- beneficiary had to leave issue
spouse is not a blood relative
applies to class gifts
doesn’t apply if:
- Beneficiary’s death occurred before T executed the will
- and T knew of death
(example: you leave it to a class "all my siblings" but one sibling died years ago) court will construe the will as: all LIVING class beneficiaries at time of execution of will
essay tip on lapse:
lapse and anti-lapse should always be brought up together
simultaneous death
T and beneficiary die simultaneously
presumption: T survived B
gotta prove that B held on longer than T
STD^: clear and convincing evidence (75%)
contract to make a will or contract to not revoke a will
hardly tested
must be established by Clear and Convincing evidence
Ademption
when the gift is gone
- has to be a specific devise/gift
addeemed= revoked
courts prefer an interpretation that
compare: lapse and ademption
ademption: GIFT is no longer in T’s estate
lapse: BENEFICIARY is no longer alive
general devise
general gift of cash- payable out of the estate
specific devise:
specifically IDENTIFIABLE property
distinguished from other gifts in the estate/will
Residuary Clause
what remains in the estate after all the gifts are paid out
ambiguities
extrinsic evidence is admissible
to explain any ambiguities on the face of a will
Mental Capacity
- 18 years of age
- sound mind
low standard
Undue influence*
two types:
prima facie and CA statutory undue influence
Testator is deprived of their free will and the will reflects what the wrongdoer wants instead of what the testator wants
(S.O.U.P)
S: susceptible to undue influence (age, illness)
O: opportunity: beneficiary must have had opportunity to exert undue influence over the testator (usually not an issue)
U: unnatural bequest- (give to your fortune teller) (give ALL to one child when he drafts the will)
P: participation- actively participated in execution of will
most common: in confidential relationship (conservators, caretakers, lawyers, clergy/parishner)
Statutory undue influence*
a provision in a will to any of the following is PRESUMED to be the product of fraud or undue influence
- gift to person who drafted the will or a person related to the drafter
- who stands in a fiduciary relationship with T
- a care custodian (but only if will was executed while care custodian was providing services to the testator)
does not apply if person is related to Testator*
if person is related to T then no stat presumption of undue influence but argument that other type of undue influence
Appointment of conservator*
creates a PRESUMPTION of a lack of capacity
adjudication that the testator/conservatee lacks the legal capacity to enter into any transaction that binds the state
however,
IF mentally competent then s/he can make or revoke a will
standard is at the time T made the will
sound mind (wills)
LOW standard
- you have to know you’re making a will
- have to know nature and extent of your property (you have to know value of your property)
- do you understand the NATURAL OBJECTS OF YOUR BOUNTY (who are your close family members)
BURDEN: is on the person who is contesting the will
property will pass by intestate unless there was a previously valid will
breach of fiduciary duty
recently tested alongside appointment of a conservator
a conservator serves in a fiduciary capacity
so has a duty of loyalty
(must put the interests of the Testator above his own interests)
boils down to: no self-dealing rule
self-dealing
conservator transfers property to himself in his individual capacity
heavy presumption of breach of fiduciary duty because particularly hazardous to the estate
conservator
has duty of loyalty
look out for fiduciary duty and self dealing
fraud
knowingly make a false statement
about a material fact
and person relies on it
(hardly tested in wills, tested in Ks)
mental capacity (wills) alcohol/drug addiction
is NOT sufficient (by itself) to prove lack of mental capacity
Lawyer prepares a will that gives a SUBSTANTIAL gift to him/herself or a person related to them
Professional Responsibility (crossed with wills)
IS NOT ALLOWED UNLESS:
- lawyer is related to the client
- or client has independent counsel.
Unintentionally omitted family members**
pretermitted= omitted
most heavily tested area in Wills
typically: T makes a will and sometime LATER has a child but forgets to amend the will
omitted children:
child born OR ADOPTED after the execution of the will
NOT STEPCHILDREN
child is entitled to intestate share
exceptions to omitted child
won’t receive intestate share if ANY of the following:
- intentional AND on face of the will
- ** decedent had one or more children and devised SUBSTANTIALLY ALL to omitted child’s other parent**
- decedent provided for omitted child by transfer outside of the will (stock account/trust or bank account) [shown by statement of decedent or by the amount of the transfer
unknown child or child believed to be dead
–> intestate share
omitted spouse
married after executing will
spouse gets ALL CP
and
intestate share of separate property up to 1/2
exceptions:
- intentional AND on face of the will
- transfer outside the estate[shown by statement of decedent or by the amount of the transfer}
- prenup- when omitted spouse when made a valid agreement waiving the right to share the decedent’s estate
premarital agreement
key: must be VOLUNTARY
- opportunity to seek independent legal counsel
- waive right to seek independent legal counsel
- gotta sign 7 days before
- if not represented indep counsel –> must be fullyinformed of effect of the agreement (tell her she won’t get anyting) AND the rights she’s giving up by signing the agreement (gotta tell her what your net worth is)
premarital agreement validity
key: must be VOLUNTARY
can’t be UNCONSCIONABLE
(gotta be fair)
- opportunity to seek independent legal counsel or expressly waive right to seek independent legal counsel
- if not represented indep counsel –> must be fully informed of effect of the agreement (tell her she won’t get anything) AND the rights she’s giving up by signing the agreement (gotta tell her what your net worth is)
- gotta sign 7 days before
- the waiving party must be proficient in the language in which the agreement was written
- agreement can’t be executed under fraud or undue influence
enforceable even if w/o consideration
EXAMPLE:
in 2017 T executed a valid will leaving “all my property to my best friend, Frank.” In 2018, T and W married. in 2020 T died
W is a pretermitted (omitted) spouse and is entitled to all the community property and a share of T’s separate property (up to 1/2)
if T had one child–> W will get 1/2 of SP
if T has two or more –> W will get 1/3 of SP
Intestate succession definition
think: “an estate plan by default”
applies to any property not effectively disposed of by will
intestate share of surviving spouse
All CP
All SP if no “issue”
if 1 kid–> Spouse=1/2
if 2+ kids–> Spouse =1/3 (kids split 2/3 equally)
intestate SUCCESSION (not share)
1st: spouse
2nd: kids or grandkids
3rd: parents
4th: siblings
intestate share if there are ONLY children
share equally
intestate share if there are children AND grandchildren
per capita with right of representation
similar to anti-lapse
each child gets their equal share even if dead (the gkids will get their portion of their dead parent’s portion) [i.e. son gets 50%. two gkids of daughter get 25%]
per stirpes
says not on bar?
issue definition
ANY lineal descendant
child=child
ADOPTED kids count
PAY ATTENTION on the bar: does the will say “issue” or “children”. If it says “issue” then the property goes to ALL lineal descendants equally. If it says kids then it gets split equally by kids (even if dead cause anti-lapse) and gkids gets their share of parent’s portion
distribution of SP by will
Testator may freely devise all SP by will
distribution of CP by will
can only devise testator’s half of CP by will
What test applies to determine whether a testator signed a will in the presence of a witness?
conscious presence test
what happens to codicils if will revoked?
revocation of a will revokes all codicils to the will
When a testator had possession of her will and that will cannot be found after the testator’s death…
There is a rebuttable presumption the testator revoked the will
When there are inconsistencies between a will and a subsequent codicil,
the codicil controls
ademption by extinction v by satisfaction
extinction: only applies to SPECIFIC testamentary gifts
in ca: the intent is relevant (think: incompetency)
satisfaction: the intent of the testator is relevant
Introduction of extrinsic evidence to aid the court in interpreting a will is ALLOWED…
- to resolve ambiguities on face of will
- to resolve ambiguities not on the face of the will
- to consider acts of indep. legal significance
An advancement applies…
to a child’s intestate share.
Abatement
Gifts by will are reduced or abated when the assets of the estate are insufficient to pay all debts and legacies.
gifts are abated/sacrificed in the following order (if order not specified in will):
- intestate property
- residuary bequests
- general bequests to non family members
- general bequests to family members
- specific bequests to non relatives
- specific bequests to relatives
will contests must be made within _______ days after probate is opened or the claim is barred.
120
The personal representative
should locate and contact interested parties, including creditors.
should inventory, appraise, and manage the estate
is entitled to a reasonable compensation from the estate
owes a duty of loyalty
^^ not an exhaustive list
