Wills - Will Validity Flashcards
Negative Wills
These are ineffective in CA. You can’t say “I hope my son gets nothing and he is hereby disinherited.” That has no legal effect in CA. Still receives intestate share.
Does CA excuse harmless errors?
Yes, if there is CLEAR AND CONVINCING evidence that the testator intended the doc to be their will.
Whose Law Applies
Real property: law of the situs
Personal property: law of decedent’s domicile at death
Saving statute: will valid not only if it complies with CA law but if it complies with the law of the state and country where executed or law of decedent’s domicile at death. These rules only apply to whether the will is VALID and admitted to probate. BUT local law governs construction and applications of the will’s provisions.
Requirements of a Valid Will
These are the requirements for WILLS and also CODICILs (which are just modifications to wills).
Requirements:
1) Legal capacity
2) Testamentary capacity
3) Testamentary intent
4) Formalities
Requirements of a Will: Legal Capacity
In CA must be 18 or older. No exceptions.
Requirements of a Will: Testamentary Capacity
The “sound mind” requirement.
1) Must understand the nature of the act (making a will disposes of property on death)
2) Must know general nature and extent of property (how much stuff you have)
3) Must recognize natural objects of your bounty (recognize and know who your family members are)
Testamentary Capacity Issues
Could a person with mental issues still have capacity? Potentially yes, because the testamentary capacity standard is lower than that of contracts capacity.
What if you’ve been adjudicated incompetent? That raises a rebuttable presumption of lack of testamentary capacity, but that can be overcome because it’s possible you executed the will during a “lucid interval”.
Even a sane person could lack testamentary capacity if drunk or high.
Requirements of a Will: Testamentary Intent
Testator must intend the very document he is executing be his will.
“Please write a will for me leaving my stuff to X” - that’s not a will. That’s just expression of instruction.R
Requirements of a Will: Formalities - of the Attested/Formal Will
Formalities Required:
1) Be in writing. Could be in pencil, carved in a pumpkin, tattoed on your back, etc.
2) Must be signed by testator or proper proxy. What is a signature? Any mark the testator makes or adopts with present intent to authenticate the will could count. Even a weird mark. Signatures can appear ANYWHERE in the doc, not just at the end.
-> Proxy signatures are allowed if they’re done in the testator’s presence and by the testator’s direction, or they’re done by a conservator pursuant to court order.
3) Attestation - need 2 witnesses. The witnesses must:
–» Know the doc is a will (Publication Requirement)
–» Must BOTH be present when testator signs or acknowledges signature (Joint Presence Requirement). BUT, remember the harmless error rule could still let it be a valid will if the court finds CLEAR AND CONVINCING evidence the testator intended the doc to be his will when he signed it.
–» Sign during testator’s lifetime, but NOT necessarily in each other’s presence (Signature of Witnesses Requirement)
Interested Witness
This is a witness who is also a beneficiary.
General Rule: the will remains valid but the gift to witness is presumed to be procured by duress, undue influence, etc.
Exceptions:
1) The interested witness REBUTS the presumption that they did shady shit to get the will OR
2) There are 2 disinterested witnesses OR
3) The interested witness is ALSO an intestate heir.
Validity and Effect of Attestation Clause
Not required, but it’s good prima facie evidence that the will formalities were satisfied.
Formalities for a Holographic Will
1) Material provisions are in testator’s handwriting
2) Signed by testator
3) No witnesses needed
Fill in the blank form: it could be possible that there’s enough of the testator’s handwriting in the fill in the blank parts to still be a legit holographic will
Nuncupative Will (Oral Will)
CA does NOT recognize oral wills of ANY kind.
