Wills and Trusts Flashcards
Testamentary Intent
Testator must have the present intent to make the particular instrument their will; wills executed as a sham or a joke are invalid.
Formal Execution of a Will
- In writing
- Signed by the testator, or someone at his direction
- Testator must acknowledge the will in the joint presence of at least 2 witnesses
- Witnesses must sign during the testator’s lifetime
- Witnesses must understand that they are witnessing a will, and cannot be interested witnesses
Harmless Error Standard
For a testator who dies after January 1, 2009, if the court finds substantial compliance with the formalities required of a will, the will may still be admitted to probate if the proponent can show, by clear and convincing evidence, that the testator intended the document to be his will.
Holographic Wills
Require the material dispositive provisions, as well as the testator’s signature, to be in his handwriting. Testator must also have capacity and intent.
Handwritten changes made by the testator to a holographic will after completed will be given effect; however, if made after execution of a formal will, will be invalid unless constitute a codicil.
Integration
Physical attachment or an internal sense of coherence raises a presumption that the pages were intended to be a part of the will when executed.
-Can be proved through testimony or extrinsic evidence.
Codicils
A codicil modifies a previously executed will, and must be executed with the same formalities as a formal will.
-A will will be treated as being republished as of the date of the codicil.
Incorporation by Reference
A document may be incorporated by reference into the will, if it was:
- In existence at the time the will was executed,
- Sufficiently described in the will, and
- The will shows testator’s intent to incorporate
Note: CA exception for a list disposing of tangible personal property; no single item can exceed $5,000 and total cannot exceed $25,000.
Acts of Independent Significance
Ambiguities in a will may be resolved by reference to acts and events outside the will, if they have significance apart from their effect on the disposition of property.
Pour-Over Trusts
UTATA permits the pour-over of assets into an inter vivos trust, as amended on the testator’s death, so long as:
- The trust is identified in the will, and
- Terms are set forth in an instrument executed before or concurrently with execution of the will.
The pour-over trust can remain unfunded until testator’s death
Contracts Related to Wills
A contract to make, not to make, or to revoke a will is valid, and contract law will govern.
Joint and Mutual Wills
A single instrument, executed by two or more testators, and intended to be the will of each testator.
-Does not raise a presumption of undue influence
Revocation of Wills
A will can be revoked by a testator with testamentary capacity at any time prior to his death, by operation of law, by subsequent instrument, or by physical act.
Revocation by Operation of Law
Occurs upon divorce or termination of a domestic partnership
Revocation by Subsequent Instrument
A will can be expressly revoked by a later will or codicil executed with formalities required; an attested will can be revoked by a holograph, and vice versa.
To the extent that a subsequent instrument makes an inconsistent disposition of property, the terms of the prior will are superseded and nullified.
Revocation by Physical Act
- Burning, tearing, cancelling, obliterating, or destroying, with
- SIMULTANEOUS INTENT to revoke
- The physical destruction of one of two executed, duplicate wills revokes all copies.
- Physical destruction of a codicil does not revoke a will, even if the testator so intended; however, revocation of a will revokes all codicils
Pretermitted Spouse
California’s “Omitted Heir” statute protects a surviving spouse from being unintentionally omitted from a deceased spouse’s will, and allows them to take the intestate share of decedent’s estate, UNLESS:
- Failure to provide for omitted spouse was intentional, as appears on the face of the will,
- Spouse was provided for in a transfer outside the will, or
- Spouse made a valid agreement waiving the right to a share
Pretermitted Child
A child who was born after the will was executed and who was unintentionally omitted will take their intestate share, UNLESS:
- Child was intentionally omitted, as appears on the face of the will
- Child was provided for in a transfer outside the will, or
- Child’s surviving parent took all or substantially all of the estate
Also applies if testator did not know of the child, or believed they were dead.
Dependent Relative Revocation (DRR)
Applies when a testator revokes his will, based upon the mistaken belief that an alternate disposition will govern, and but-for the mistaken belief, the testator would not have revoked the will.
-Courts will give effect to the improperly revoked portions, if it can be shown that that is what the testator would have wanted as opposed to intestacy
Revival
Only applies in the following situation:
- W2 revokes W1
- W2 is revoked by physical act
- W1 can be revived if it can be shown by evidence from surrounding circumstances or contemporaneous declarations, that that is what testator intended
Lapse and Anti-Lapse
If a beneficiary predeceases the testator, their gift will be deemed to have lapsed and will fall to the residue, unless anti-lapse applies.
CA’s Anti-Lapse statute saves a gift if: the deceased beneficiary was kindred (blood relative) to the testator, and they left descendants who survived the testator
Specific Devises
A gift of a particular item of property, as distinct from all other objects in the estate
General Legacy
A gift of general economic benefit, payable out of the general assets of the estate
Demonstrative Legacy
Hybrid between specific and general; a gift of a general amount to be paid from a particular source
Ademption
Ademption occurs when a specific gift identified in the will is no longer in T’s estate at the time of his death.
By extinction: the gift was given away or sold during T’s lifetime
By satisfaction: gift already given to the beneficiary.
California courts will take into consideration T’s intent, and whether he intended the gift to adeem.
Testamentary Capacity
A testator must be at least 18 years of age, and of sufficient mental capacity at the time the will was executed, which includes:
- Understands the nature and significance of his acts
- Understands the nature and extent of his property
- Understands the natural objects of his bounty
Undue Influence, in General
Undue influence is present and can make ineffective the execution or revocation of a will, to the extent that the testator’s free will was destroyed or overcome. Mere nagging, pleading, or begging will not suffice.
Factors to consider include: T’s susceptibility, B’s opportunity to influence, B’s disposition to influence, and whether the gift was an unnatural bequest.
Common Law Presumption of Undue Influence
- Confidential relationship between B and T
- B participated in some way in procuring the gift or executing the will
- The gift was unnatural (not to the natural objects of his bounty)
CA Statutory Presumption of Undue Influence
A gift to any of the following parties raises the presumption of undue influence:
- Drafter of the will
- Someone in a fiduciary relationship with T
- Care-custodian, unless previous relationship with T
Fraud
In the inducement: misrepresentation of fact that influenced the testator’s motives
In the execution: misrepresentation as to the nature or contents of the instrument (“Here, sign this,” and it is a deed)
Mistake
In the inducement: no relief for mistake in the inducement, unless the mistake and the disposition the testator would have otherwise made both appear on the face of the will
In the execution: extrinsic evidence is permissible to show that T was unaware of the nature of the instrument she signed
