wills essay 1

Question 1

revocation by physical act

Answer 1

A testator can revoke a will by burning, tearing, canceling, destroying, or obliterating it, with intent to revoke

Question 2

what happens to decedent’s estate not properly disposed of in the will

Answer 2

Any part of a decedent’s estate that is not properly disposed of by will passes to decedent’s intestate heirs as prescribed by statute. Community property is treated differently than separate property. Under the intestacy statute, if there is no surviving spouse or domestic partner, a decedent’s intestate estate passes to her issue. If of the same generation, they take equally.

Question 3

revival

Answer 3

Generally, revival of a revoked will concerns a will that was revoked by a subsequent instrument, which itself is revoked by physical act or subsequent instrument. In that case, in CA, the first will is revived if that is the testator’s intent

Question 4

incorporation by reference

Answer 4

To incorporate a document by reference (1) it must be in existence at the time the will was executed, (ii) it must be sufficiently described in the will; and (3) there must be proof that the proffered document is the one described in the will

Question 5

integration

Answer 5

A will consists of all papers actually present at the time of execution that the testator intended to constitute her will. The requisite intent and presence of the papers at execution are presumed when there is a physical connection of the papers, and extrinsic evidence also is admissible to show intent

Question 6

undue influence

Answer 6

To establish undue influence, the contestants, who have the burden of proof, 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 (ii) the product of the influence was a will that would not have been executed but for the influence.

Question 7

statutory presumption of undue influence

Answer 7

By statute, CA presumes that a provision in favor of one of the following people is the product of fraud or undue influence: (i) the person who drafted the instrument (ii) the person who transcribed the instrument and was in a fiduciary relationship w/ the testator when the instrument was transcribed; (iii) a testator’s care custodian. However, presumption does not apply to someone who had personal relationship with transferor before she became dependent and provides servies without renumeration