Wills Basics

Question 1

Summary of Issues

Answer 1

1. Intestacy (spouses, issue)
2. Execution of Wills
3. Revocation
4. Construction
5. Power to Transfer
6. Will Contests

Question 2

Intestacy - Components

Answer 2

1. Surviving Spouses
2. Issue

Question 3

Intestacy - Surviving Spouses; qualification

Answer 3

A valid surviving spouse must
(i) be legally married to the decedent at time of death, and
(ii) survive the decedent by 120 hours to take by intestacy

Question 4

Intestacy - Surviving Spouses; CP and SP Share

Answer 4

At death, the surviving spouse is entitled to 1/2 of the CP as their own share as well as the decedent’s 1/2 CP share - for 100% of the CP.
The surviving spouse’s SP share depends on the surviving number of lineal descendants, parents, or issue of parents.
- 100% for no heirs or issue
- 1/2 for one surviving heir or issue
- 1/3 for more than one surviving heir or issue

Question 5

Intestacy - Issue

Answer 5

Issue refers to lineal descendants of the testator, including children, grandchildren, and great-grandchildren. Adopted children take the same as non-adopted children

Question 6

Intestacy - Issue, Calculating per capita with Representation

Answer 6

Per capita - when the surviving issue are all of equal degree of kinship, the property passes equally to each person
Per capita with representation - when surviving issue are of unequal kinship, the property is divided at the first generation surviving the decedent. Shares that would go to the member predeceasing the decedent go to their issue.

Question 7

Execution of Wills - Components

Answer 7

1. Capacity
2. Testamentary Intent
3. Attested Wills
4. (Substantial) Compliance
5. Holographic Wills
6. Codicils
7. Substitutes - Deed
8. Choice of Law

Question 8

Execution of Wills - Capacity

Answer 8

Testator must:
(i) Be at least 18 years old,
(ii) Understand the extent of their property, and
(iii) Understand who is receiving the property

Question 9

Execution of Wills - Testamentary Intent

Answer 9

Testator must understand he is executing a will and intend for it to have ‘testamentary effect’ and must generally know and approve of its contents

Question 10

Execution of Wills - Attested Wills

Answer 10

Attested wills must have
(i) A writing,
(ii) Signature of the testator, and
(iii) Witnesses.

The will must be signed in the joint presence of and attested to by two witnesses of sufficient capacity/maturity and be aware the instrument is a will.

Question 11

Execution of Wills - Attested Wills, Interested Witness

Answer 11

“Interested witnesses” are witnesses with financial interests in the will. The presence of an interested interest creates a rebuttable presumption that the interested witness exerted undue influence on the testator.
If not rebutted, the witness only receives their intestate share.

Question 12

Execution of Wills - Attested Wills, Repulication by Codicil

Answer 12

Valid codicils executed after the original will cure any interested witness problems arising during execution of the original will. Interest is ‘cured’ and the witness can take under the terms of the will

Question 13

Execution of Wills - (Substantial) Compliance

Answer 13

When a valid will is not executed in compliance with the law, the will can still be treated as if it were executed in compliance if the proponent of the will establishes, by clear and convincing evidence, that the testator intended the will to substantially comply.

*Should be discussed when will is not validly executed. Discuss both outcomes

Question 14

Execution of Wills - Holographic Wills

Answer 14

A testator can handwrite a valid will when
(i) it includes ‘material provisions,’ such as beneficiaries and items to be received, is
(ii) signed by the testator, and
(iii) clearly shows the testator’s intent to document the will

Preprinted wills can be valid holographic wills when ‘material provisions’ are handwritten and signed.
There is NO witness nor date requirement

Question 15

Execution of Wills - Codicils

Answer 15

Codicils are supplements that alter, amend, or modify a will instead of replacing it. They must generally be executed with the same formalities as a will and can be attested or holographic

Question 16

Execution of Wills - Codicils, contours

Answer 16

Republication - Validly executed codicils republish a will as of the date of the codicil
Cure - Valid codicils can cure any problems existing at the execution of a will
Adaptability - holographic codicils can amend attested wills

Question 17

Execution of Wills - Will Substitute/Deed

Answer 17

Deeds can serve as will substitutes upon death of a landowner. A grantor typically delivers a deed to a third party with instructions to give the deed to a grantee upon the grantor’s death. Such a deed will be a make a valid transfer at death as long as they fit the requirements of an attested or holographic will.

Question 18

Execution of Wills - Choice of Law

Answer 18

Wills validly executed in other states are treated as valid in CA. Decedents who die domiciled in CA with wills not validly executed in other states that are valid in CA will be treated as if their otherwise-invalid will is valid.

Question 19

Revocation - Components

Answer 19

1. Subsequent Instrument
2. Physical Destruction
3. Revocation by Operation of Law
4. Revocation of Codicil

Question 20

Revocation - Subsequent Instrument

Answer 20

Testators can revoke wills or codicils by executing later wills or codicils that partly or completely revoke the priors - only if they are written.
Subsequent instruments can be partial or complete revocations, and are effective whether express or implied*. Where there are inconsistencies, the later instrument controls.

*If implied, make sure to explain where the conflict is.

Question 21

Revocation - Physical Destruction

Answer 21

Wills or codicils can be partially or completely revoked by intentionally destroying the will or codicil aiming to revoke it. Some defacement of the actual language of the will is required, and can be outsourced to a third party when the request is proven. Destruction of a signed original or duplicate assumes destruction of all copies

Question 22

Revocation - Operation of Law, Divorce or Dissolution of Domestic Partnership

Answer 22

Divorce or dissolution of a domestic partnership automatically revokes all will provisions to a former spouse/partner barring a showing the testator intended for the will provisions to survive. Not activated by separation alone.

Question 23

Revocation - Revocation of Codicil

Answer 23

When valid codicils are revoked, the original will terms are revived and should be followed.

Question 24

Revival - Components

Answer 24

1. Republication
2. Dependent Relative Revocation

*Often found where a valid will and later will/codicil are created. Often the later will or codicil is subsequently destroyed, prompting a revival

Question 25

Revival - Republication

Answer 25

Revocation of later wills/codicils revive the original if there is proof the testator intended to revive the original.

If the later will/codicil is revoked by physical act, extrinsic evidence of testator’s intent to revive the original is admissible.

Question 26

Revival - Dependent Relative Revocation

Answer 26

DRR allows a court to revive a revoked will when the testator
(i) revoked the will by subsequent instrument or physical act
(ii) under a mistaken belief of law or fact.
Must be shown the testator would not have revoked but for the mistaken belief.