Wills & Trusts Flashcards
Valid Will
A valid will requires that the testator have proper CAPACITY, effective INTENT, and complete the required FORMALITIES of either a formal or holographic will.
Capacity
At the time will is created, the testator must:
1) know the EXTENT of their PROPERTY,
2) know the OBJECTS of their BOUNTY,
3) UNDERSTAND THE NATUER of their act.
Any part of a will affected by an INSANE DELUSION is invalidated if testator had a i) FALSE BELIEF, ii) that was the PRODUCT OF A SICK MIND, iii) had no EVIDENCE TO SUPPORT BELIEF, and iv) the belief AFFECTED THE WILL.
Formal (Attested) Will Formalities
An attested will is a written will that must be SIGNED by the testator and witnessed and signed by two (2) COMPETENT, DISINTERESTED parties.
-An INTERESTED witness is one who is a beneficiary under the will. If an interested witness is present, in CA it creates a REBUTTABLE PRESUMPTION that the witness procured the device by fraud, duress, or undue influence.
Holographic (Written) Will Formalities
A holographic will is on that is handwritten and unattested. In CA, holographic wills are valid if the signature and material provisions are in the handwriting of the testator.
Integration
In order to bring in multiple documents (papers) into a single valid will, 1) At execution, all documents must be physically present, and 2) there must be intent to integrate.
Incorporation by Reference
Any document referenced in the will must be 1) clearly identified in the will, 2) EXISTED AT TIME of execution, and 3) intent to integrate.
Facts of Independent Significance
Facts that exist outside of the will can be relied upon to fill in the blanks of a valid will.
Pour-Over Wills
A gift stated in a will that “pours over” into a trust, allowed under three theories:
- Incorporation by Reference (trust existed at time of writing),
- Independent Significance (trust is independent and already funded), or
- UTATA (a valid trust at will execution and referenced in will) Statute allows validity.
Codicils
An instrument that SUBSEQUENTLY modifies, alters, or amends a will. Must follow WILL FORMALITIES (either attested or holographic).
- A valid codicil can be a valid republication of a former will.
- REVOKING A CODICIL does not affect the will, but revoking the will simultaneously revokes it’s codicil.
Defenses to Will Formation
If FRAUD, MISTAKE, or UNDUE INFLUENCE is present at the time of will formation, it can be a valid defense to the will.
Fraud
An INTENTIONAL MISREPRESENTATION of MATERIAL FACT for the purpose of inducing action or inaction which DOES IN FACT INDUCE the action or inaction.
Fraud in execution = invalid will
Fraud in inducement = affected portions (gifts) invalid
Fraud to prevent revocation = invalid will
Mistake
On the part of the Testator, a mistake can be made in CONTENT, EXECUTION, INDUCEMENT, or DESCRIPTION:
Content - an omission has NO REMEDY, an addition is removed.
Execution - negates intent, which invalidates will.
Inducement - no remedy unless testator’s intentions but-for mistake appear ON THE FACE of the will.
Description - if ambiguity, PAROL EVIDENCE allowed to show Testator’s intentions.
Undue Influence
The Testator’s free will was subjugated; any portion of the will affected by undue influence is invalidated if:
1) Testator was SUSCEPTIBLE,
2) Influencer had OPPORTUNITY (relationship with T),
3) Influencer was an ACTIVE PARTICIPANT (received a gift), and
4) an UNNATURAL RESULT OCCURRED.
Revocation
A valid will can be revoked through the testator or another’s actions, ultimately invalidating the wills effectiveness over the estate.
Revocation by Physical Act
A Testator can revoke a will by physical act so long as the INTENT TO REVOKE is SIMULTANEOUS with the act.
Cancellation = crossing out (must be through the words of the will, and requires holographic formalities (signature of T))
Mutilated Wills
If a will is found mutilated, it creates a REBUTTABLE PRESUMPTION that the will was intended to be revoked.
Revocation by Subsequent Instrument
A will can be revoked by a subsequent instrument either EXPRESSLY or by IMPLICATION.
Express = codicil or later will that states revocation
Implied = subsequent will creates INCONSISTENCIES that revoke prior will’s affected portions
Revocation by Operation of Law
PRETERMITTED SPOUSES and CHILDREN can take under intestacy unless:
1) INTENTIONAL OMISSION,
2) SUFFICIENT OUTSIDE TRANSFER, or
3) Spouse waived via signed document, or Child’s parent receives all assets.
Ademption
A gift may fail if it has i) gone EXTINCT, ii) has been SATISFIED, or iii) has been ADVANCED.
Extinct - a specific gift is no longer owned (look at intent)
Satisfaction - a writing or acknowledgement exists showing intent of T has been previously satisfied
Advancement - prior payment, with intent in a writing; gift is deducted from party’s will share.
Revival
In CA, revival of a prior will is NOT AUTOMATIC. There must be a showing of the Testator’s intent to revive a prior revocation through:
- Republication,
- Re-execution, or
- Dependent Relevant Revocation
Republication
A previously revoked will instrument can be revived by either RE-EXECUTING the will, or executing a CODICIL that incorporates the previous will by reference.
Dependent Relevant Revocation (DRR)
Cancels a revocation by a testator that was based on a MISTAKEN ASSUMPTION of law or fact. If a testator revokes his will on the mistaken belief that another testamentary instrument was effective (i.e. Will #2), and otherwise would not have revoked, cancels the revocation.
- If crosses out a gift and handwrites an invalid INCREASE, original is restored.
- If crosses out a gift and handwrites an invalid DECREASE, courts decide that entirety is invalid (no gift).
