Wills Flashcards
Wills formally executed
P.L.U.S.
Presence*
(testator must sign his will in the joint presence of 2 witnesses)
Lifetime
(witnesses must sign during testator’s lifetime- witnesses don’t have to sign in presence of eachother or of testator)
Understand
(rarely tested)
Signed
(signed by testator, conservator pursuant to a court order, another person may sign testator’s name as long as its in the testator’s presence and at the testator’s direction)
proponent
the proponent of the will is the person who wants to enter the will into probate
Substantial compliance doctrine*
-when fails PLUS
must establish by clear and convincing evidence (75%) that TESTATOR INTENDED that was the will (at the time the testator signed he will, the testator intended the document constitute a will)
conservator
makes decision for another
just because they have a conservator doesn’t mean they can’t make a will
can make some decisions but not others
the standard:
whether the conservatee/testator has the ability to understand the transaction
can make or revoke a will made by a conservator
interested witness
a beneficiary
one of the witnesses who signed is a beneficiary
it’s allowed
but presumption of undue influence
if the witness fails to rebut the presumption, the witness can still take up her intestate share but no more
doesn’t apply to trustee’s or executors- beneficiaries receive gifts. trustees/executors are compensated therefore taking a fiduciary capacity
holographic wills
handwritten wills
**tested
1) testator’s handwriting
2) material provisions:
[the gifts and the names of the beneficiaries must be in testator’s handwriting
3) and signed by Testator
codicil
an amendment to the will
therefore, must be executed in the same way as a will
either formally executed (PLUS) or holographic (written)
Choice of law
rarely tested
-- someone will execute a will outside of California, will won't be in accordance will CA requirements, but CA says its fine. more likely than not valid-- - where T executed the will - T was domiciled when it was executed - T domiciled at death - got to be valid in one of those three
EXAMPLE: T signed his will in front of W1 and W2. W1 signed immediately. w2 signed the next day
the will is validly executed
because T signed the will in the joint presence of two witnesses
The fact that w2 signed her name the next day isn’t relevant because the W’s don’t have to sign in the presence of eachother. They just both need to be present when T signs the will or acknowledges his signature
EXAMPLE: T signed his will while he was alone. The next day, in front of two witnesses, T acknowledged his signature on the will and both witnesses signed
The will was validly executed
because T acknowledged his signature in the “joint presence” of two W’s
EXAMPLE: T typed up a will and asked two friends to act as Ws. W1 was present when T signed his name. W1 then signed her name and left the room. Immediately thereafter, w2 came into the room and signed the will
the will was not formally executed
because T signed his will in the presence of only 1 witness
NOTE: the will may be saved by the substantial compliance doctrine
EXAMPLE: T signed his will in front of W1. W1 signed as a witness. The next day, T showed W2 his will and acknowledged his signature. w2 then signed as a W
the will was NOT formally executed
because T did not sign or acknowledge his signature in the “joint presence” of two W’s
NOTE: the will may be saved by the substantial compliance doctrine
Revocation*
- physical act
- subsequent instrument
- by law (least likely tested) (divorce)
Divorce revokes all will provisions in favor of the former spouse unless the will provides otherwise
Revocation by physical act
- intent to revoke
- obliterate, destroy, burn, torn, cancel
someone else do it for you?
1. in T’s presence
2. at T’s direction
(in bar: T will call Lawyer and tell L to rip it up. won’t work cause not in presence)
Duplicate will revocation?
if you revoke one you revoke both
increase of a will?
needs to have formal execution (PLUS) and for holographic will you need material terms.
example:
typewritten:
to barbra: 10,000
crossed out now:
to barbra (typed): 18,000
decrease of will?
totally fine
revocation by subsequent instrument
you can expressly revoke
in whole or in part
implied revocation
inconsistent/contradictory
essay tip for wills:
make sure to focus on the testators intent. focus on T’s INTENT when writing essay**
will after divorce
will revoke all provisions of gifts going to former spouse
Revival
not likely tested
two scenarios:
- will 1
will 2 (revokes 1st by subsequent instrument)
physical act to revoke 2
–> 1st will revived if that was T’s INTENT
extrinsic evidence allowed
2. will 1 will 2 (revokes 1) will 3 (revokes 2) ---> will 1 revived ONLY if it appears from the terms of the will that the T INTENDED the first to take effect.
extrinsic evidence not allowed
for both scenarios: if the first will was revoked by physical act –? can not revive! (rationale: can’t revive a will that’s not in existence)
DRR
cancels a mistaken revocation
undoes a mistake
revokes will upon mistaken belief that a new disposition of property would be effective
but for this mistake, T would not have revoked this first will
DRR cancels revocation and allowed revoked will to remain in effect
comes down to a matter of intent***
DRR court options
- reinstate first will
- intestacy
whatever is closer to T’s intent
when DRR will be tested:
will 1 (physical act but duplicate somewhere) will 2 is improperly executed for some reason
court can’t execute will2 because not properly executed
components of a will
- integration
- incorporation by reference
- acts of independent significance
integration
court can include all papers that are present at the time T executes the will
as long as they show some sort of unity then can add/combine
Incorporation by reference
a will can:
- writing
- in existence **(when will executed)
- sufficiently describes
- language of the will describes the T’s intent (to incorporate by reference)
acts of independent significance
not highly tested
a will may dispose of property by reference to acts that have significance apart from their effect on the will
act must be done by primarily nontestementary motives
interpretation and construction
a will speaks at the testator’s death but is construed in light of the circumstances as they existed at the time the testator executed his will
Lapse
(on MBE’s cause real property concept)
beneficiary dies before the testator
then the gift lapses and falls into the residue
