Wills: Types & requirements

Question 1

What types of wills are allowed in CA?

What types of wills are not allowed?

Answer 1

1. Attested Will
2. Holographic Will
3. California Statutory Will

NOT allowed –> oral will

Question 2

What is required for the validity of ALL wills? (2)

Answer 2

1. “testamentary intent” –> the PRESENT INTENTION to make the PARTICULAR INSTRUMENT her will

2;. testator is 18+ and of sound mind

Question 3

What issues arise with regards to “testamentary intent”?

Answer 3

1. Ineffective deeds
2. Sham wills
3. Conditional wills

Question 4

Describe the issue of “ineffective deeds” and testamentary intent?

Answer 4

An ineffective deed will be denied probate even if signed and attested BECAUSE of a lack of testamentary intent

Question 5

Describe the issue of “sham wills” and testamentary intent?

Answer 5

Wills executed as a joke/sham are not valid bc of lack of testamentary intent

Question 6

Describe the issue of “conditional wills” and testamentary intent?

Answer 6

Parole evidence –> NOT admissible to show that a will was conditional

Parole evidence –> IS admissible to show that there was no testamentary intent (For example, that will was a sham).

ISSUE: sometimes conditions and existence are hard to tell apart. On exam, go into both.
Example –> “if I do not return from my trip, I want my property to go to…”

Question 7

What is a holographic will?

What are the requirements?

Answer 7

“holgraphic will” = a will in testator’s own handwriting

Requirements:

1. testamentary intent (present intent to make will)
2. testamentary capacity (18+ and sound mind)
3. SIGNATURE and MATERIAL PROVISIONS must be in testator’s handwriting

NOTE –> signature need not be at the end, it could be at the beginning

Question 8

With regards to a holographic will, what happens if an inconsistent will is found?

Answer 8

The inconsistent will governs UNLESS it can be shown that the holographic will was executed later in time

Question 9

What happens if there are handwritten changes to a holographic will?

Answer 9

Handwritten changes to a holographic will are given effect

Question 10

What is a California statutory will?

What are the requirements?

Answer 10

“statutory will” = state sponsored will form allowing testator to execute will without an attorney

REQUIREMENTS –>

1. testamentary intent (present intent to make will)
2. testamentary capacity (18+ and sound mind)
3. testator must COMPLETE BLANKS AND SIGN will
4. each witness MUST OBSERVE testator’s signing
5. each witness must SIGN IN THE PRESENCE of testator

Question 11

What are the requirements of an “Attested Will”?

Answer 11

Requirements –>

1. testamentary intent (present intent to make will)
2. testamentary capacity (18+ and sound mind)
3. will must be IN WRITING
4. SIGNED by testator
5. testator must SIGN or ACKNOWLEDGE the will or his signature in the JOINT PRESENCE of at least two witnesses
6. the TWO WITNESSES must sign during testator’s lifetime
7. witnesses must UNDERSTAND instrument being executed as testator’s will

Question 12

With regards to an “attested will” - what are the details re: the signature requirement?

Answer 12

Rule –> testator must SIGN or direct ANOTHER person to sign will

NOTE –> any mark affixed w intent the it operate as signature is Ok. CAN BE informal name or initials.

NOTE –> signature need not be at end

NOTE –> conservator may sign for conservatee pursuant to court order

Question 13

With regards to an “attested will” - what are the requirements with regards to the witnesses?

Answer 13

1. Testator must sign or acknowledge in JOINT PRESENCE of two witnesses
2. Will must be signed by at least two witnesses.
   NOTE –>They need not sign in presence of testator or each other
   -HOWEVER –> they MUST sign during lifetime of testator

NOTE–> they need not sign at end of the will

3. witnesses MUST understand that document is testator’s will
4. witnesses MUST be competent at time will is executed

Question 14

What happens if a witness has a “beneficial interest” in the will?

Answer 14

A witness with a “beneficial interest” IS competent to testify, BUT the devise raises the PRESUMPTION that it was procured by duress, menace, fraud, or undue influence.

If there are at least TWO other disinterested witnesses –> devise is fine bc witness is supernumerary

If devise fails bc witness is unable to rebut presumption –>
witness gets such proportion of devise as does not exceed the share of the estate that would be distributed to the witness in intestacy

Question 15

In an attested will, is an attestation clause required?

Answer 15

No.

HOWEVER –> it is useful in creation rebuttable presumption that will was duly executed

Question 16

What happens if a will or codicil is not executed in compliance with witnessing requirements?

(Harmless Error Doctrine)

Answer 16

May nevertheless be admitted into probate IF proponent of will established by:

1. CLEAR AND CONVINCING EVIDENCE that
2. at the time testator EXECUTED WILL
3. he INTENDED it to constitute will

Question 17

What is the effect of changes to an attested will?

Answer 17

Will NOT take effect unless:

1. executed with same formalities (codicil); or
2. changes qualify as a holographic codicil

Question 18

What is a codicil ?

Answer 18

“codicil” modifies a previously executed will and must itself be executed with the same formalities.

NOTE –> it can be admitted to probate by itself

Question 19

What is the doctrine of “republication by codicil”?

Answer 19

Will is treated as having been executed on date of last codicil