Execution of Wills

Question 1

Statutory Formalities

Answer 1

1. Writing, 2. Witnesses, 3. Testamentary Intent, 4. Compliance, 5. Place of Execution

Question 2

Attested Wills: Writing

Answer 2

> writing must be signed by testator
testator must be at least eighteen years old and of sound mind
testator’s signature must merely indicate his desire to sign( even X is permissible)

> CA does not recognize oral wills.

Question 3

Witnesses

Answer 3

> Signatures: a will must be signed in the joint presence of and attested to by two witnesses, and if T does not sign in the presence of witnesses, he must expressly or impliedly acknowledge his signature to them before they sign.

> Conscious presence test: CA applies the majority rule: witnesses need not read the will, but must be aware that the instrument is a will

• T and witness must be aware of each other’s presence and what each is doing.

> Age/Competency: witnesses must be of sufficient mental capacity and maturity to comprehend the value of the act, no minimum age required for witnessess

> Interested witnesses: unless there are two other disinterested witnesses, a rebuttable presumption of undue influence arises, except for gifts made solely in a fiduciary capacity

Question 4

Testamentary Intent

Answer 4

T must understand that he is executing a will and must intend for it to have testamentary effect, and must know and approve of its contents

Question 5

Substantial Compliance in CA

Answer 5

A will is treated as though it were in compliance with the law if the proponent of the will establishes by clear and convincing evidence that at the time T signed the will, T intended the will to constitute T’s will.

Question 6

Place of Execution

Answer 6

A will executed in conformity with the law of CA, the place of execution, or the testator’s domicile at execution or death is valid in CA.

Question 7

II(B): Holographic Wills

Answer 7

recognized in CA, the material provisions must be in T’s handwriting and the instrument must be signed by T

does not need to be witnessed or dated, but it must be clear that the document was intended to be a will

Question 8

II(C): Codicils

Answer 8

must be executed with the same formalities as a will

validly executed codicil republishes the will as of the date of the codicil( may even validate an invalid will if the codicil refers to it with sufficient certainty to identify and incorporate it)

a holographic codicil to an attested will is valid as is an attested codicil to a holographic will.

Question 9

II(D). Will Substitutes

Answer 9

1. Revocable trusts: When a trustee holds legal title and a beneficiary holds equitable title, there is no need for title to be transferred upon the death of the creator, and thus inter vivos trust property is nonprobate property. A trust that is silent as to its revocability is deemed revocable. Cal Prob Code.
2. Pour Over Wills
3. Bank Accounts and Securities Registered in Beneficiary Form: amounts on deposit in a bank account may be transferred at death by means of a joint account designation or any other multiple party account designation. The surviving tenant or tenants have an absolute right to the account proceeds unless extrinsic evidence shows that they were added for convivence purposes only.
4. Payable on Death Clauses: property is distributed at decedent’s death. Beneficiary must file a death certificate with the custodian of the property.
5. Life insurance: policy proceeds are not part of D’s estate unless payable to the estate as the beneficiary
6. Deeds: unconditionally delivered to the grantee during D’s lifetime or delivered to an escrow agent during D’s lifetime with instructions to turn the deed over to grantee upon D’s death

• Revocable transfer upon death deed: makes a donative transfer of real property to a named beneficiary upon owner’s death and is revocable until owner’s death, must be signed, dated, acknowledged, and recorded, and substantially comply with a statutory form.

7.Joint Tenancies.