Wills-Execution-DWB Flashcards
Attested Will
Generally
A valid Attested Will must be:
- in writing,
- signed, and
- witnessed.
Specific requirements vary by jurisdiction.
Holographic Will
A Holographic Will is an unwitnissed will.
Only about half of states adknowledge.
CA & UPC: Signature & material provisions must be in T’s handwriting, intent may be part of form or hand written
Some Jurisdictions also require statement of intent or whole document to be in T’s handwriting.
Codicil
A Codicil is a will which amends a previous will without revoking it entirely.
Execution of a codicil reexecutes, republishes, and re-dates the underlying will, which can cure defects in the underlying will, e.g. interested witness, undue influence.
If underlying will is not valid, the codicil becomes a freestanding will.
Devices which increase the scope of a will
- Integration
- Republication by codicil
- Incorporation by reference
- Facts of independent significance
Integration
Verbatim: Under the doctrine of integration, those pieces of paper which are physically present at the time of execution and that the testator intends to be part of the will constitute the pages of the will.
Republication by Codicil
Execution of a codicil has the effect of re-executing, republishing and re-dating the underlying will.
Incorporation by Reference
A document not executed with Wills Act formalities may be given effect along with a will if: the document was in existence at the time the will was executed, the will expresses an intent to incorporate the document, and the will adequately identifies the document.
Facts of Independent Significance
A will may refer to a fact or event that is to occur outside of the will, the fact or event may contol either who takes under the will or how much a beneficiary takes.
The fact or event must have significance independent of its effect upon the will.
Will Revocation
A will may be revoked by:
- subsequent will: valid attested or holographic
- act: destructive toward will, with intent to revoke, including non-will writing on will by testator
- presumption: if will cannot be found, revocation by act presumed
- operation of law: marriage, divorce, etc.
Revocation of
Subsequent Will
T executes W2, revoking W1. T thereafter revokes W2.
Traditional Approach: W2 revoked W1. W1 must be re-executed.
CA & Modern Majority: W2 revoked by W3: W1 revoked except as provided in W3.
CA & Modern Majority: W2 revoked by Act: W1 revoked except as evidenced by circumstances and declarations.
Attested Will
California
- In California, a will must be in writing,
- signed by the testator, or another in T’s name, at T’s direction, in T’s presence, or by a conservator with a court order
- signed, during T’s lifetime, by two witnesses who,
- together at the same time,
- witnessed T’ sign the will or acknowledge the signature or will, and
- undestand that they are signing T’s will.
Judicial Approaches to will Requirements
Absolute Strict Compliance**: must comply exactly. **CL and Majority
Substantial Compliance: Court may probate will if there is clear and convincing evidence that: 1) the testator intended the document to constitute their will, and 2) the Wills Act requirements were substantially met.
Harmless Error: Only need C&CE of testator intent. i.e. first half of Substantial Compliance. UPC, CA (for witness req.)
“Witnissed”
Interpretations
Line of sight
Traditionally a witness must see or have the opportunity of seeing the tesator sign and the testator must see or have the opportunity of seeing the witness sign the will.
Conscious Presence Test
Modernly, it is commonly acceptable for the witness to be able to tell from sight sound and general awareness that the required act is being performed.
Delayed Attestation
California: Witnesses must sign during T’s lifetime
UPC: Witnessess must sign within a reasonable time of witnessing execution, even after T’s death
Traditional: Witnisses must sign at the execution, in presence of T
Attestation Clause
Attestation Clauses, or self-proving affidavits, create a rebuttabe presumption that the will was properly executed.
This is done to facilitate the probate process by eliminating the need to call witnesses court prior to probate.
Attestation Clauses are common but not required.
Interested Witness
An interested witness is a witness who has a financial interest in a will.
- CL: Invalidate Will
- Minority: Void interested party gift
- CA, Majority: Void interested party gift in excess of intestate share
- UPC: No separate remedy, claim undue influence or fraud
Swapped Wills
Husband and Wife sign each other’s wills instead of their own.
- Traditional CL: Will invalid
- California, Modern Trend: Will valid if Testator intended the will to constitute their will.
Conditional Wills
Conditional wills are wills which are only given effect if certain conditions are met.
Valid, but provisions are narrowly construed as much as possible as explanations rather than conditions.
Contrast with Facts of independent significance, which affect provisions within a will.
Nuncupative Will
Oral Will
Nuncupative wills are made under peril of death.
Oral wills are not written.
Example: common scenario is soldier in battle telling friends what to do with his stuff as he lay dying.
Not generally recognized. Even where recognized, not very viable due to numerous requirements.
Revocation by
Subsequent Will
Verbatim: A will or any part thereof is revoked by a subsequent will which revokes the prior will or part expressly or by inconsistency.
Revocation by
Act
CA Rule: “A will or any part theref is revoked by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either the testator or another person in the testator’s presence and by the testtor’s direction.”
Note: Lines or VOID count. Destroying one duplicate revokes all duplicates.
Variations: Testator must perform act, no partial revocation, lines/markings don’t count.
Revocation by Presumption
CA Rule: If the testator’s will was last in the testator’s possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator’s dath, it is presumed that the testator destroyed the will with intent to revoke it.
Variations: Missing testator copy revokes all duplicates.
Factors affecting burden of proof: degree of decedent control, accessability to beneficiaries,
DRR
Dependent Relative Revocation
Even if a will or part thereof is validly revoked, courts will ignore the revocation if: 1) the revocation was based on a mistake, AND, 2) testator would not have revoked if they had known the truth.
Generally, this is only used where: 1) there is a failed alternative testamentary scheme, OR 2) the mistake is set forth in the revoking document and is beyond the testator’s knowledge.
Common Example: T revokes W1 by act, believing W2 was validly executed.
Revocation
by
Operation of Law
CA Rule: Divorce automatically revokes all provisions in a testator’s will in favor of the ex-spouse. Applies to domestic partnerships. Revived if remarried to same spouse.
UPC/Majority: revocation is irrevocable.
Variation: Spouse’s family also disinherited.
Contracts
Concerning
Wills
A valid contract to make or not to revoke a will requires an offer, acceptance, and consideration.
Writing requirement determined by statute of frauds.
- Remedy: Constructive trust
- NOT specific performance
- Executed will still probated
Note: UPC, CA, and Majority: joint or mutual wills DO NOT create a presumption of a contract not to revoke.
Contracts
Concerning Wills
California
- Provision in a will stating material provisions of contract
- Express reference in a will
- Writing signed by decedent
- C&CE of an agreement between decedent and claimant or another person for benefit of claimant
*
Order of Takers
1) Creditors
2) Spousal Protection
3) Beneficiaries
Contract not to Revoke
Remarriage
Majority: enforce terms of contract, allow beneficiaries to take before new spouse’s spousal protections.
Minority: does not enforce because enforcement discourages or restrains the right to marry.
Valid Signature
Any completed marking intended by the testator to be their signature qualifies. Singatures stopped of testators own volition qualify, but interrupted signatures which are not later completed do not qualify
Lost Will Doctrine
Under the lost will doctrine, where a will is lost but not presumed to have been revoked, extrinsic evidence is admissible to prove the provisions of the will.
Partial Revocation by Act
Majority: Revoked gift passes to residuary clause.
Minority: Revoked gift passes through intestacy.
