Validity Flashcards
Validity: GR
A testator (T) may will away all of T’s SP and T’s half of CP (if any) by executing a valid testamentary instrument that specifies how property is to be distributed. The probate court will follow T’s instructions except in certain circumstances where property is distributed by operation of law. In the absence of a valid testamentary instrument or in the case of property not distributed under a valid testamentary instrument, the probate court will distribute according to the rules for intestate succession.
Valid Testamentary Instrument: 3 Elements
- Intent
- Capacity
- Formalities - either a formal attested instrument (will/codicil) OR a holographic instrument (will/codicil)
Element 1: Testamentary Intent
T must intend to dispose of property upon his death
Element 2: Capacity
-No capacity if infancy (less than 18 years)
-Mental:
Know and understand nature and extent of bounty, natural objects of bounty, nature of disposition
No capacity if insane delusion (but for delusion)
Will Contest: Fraud
willful deception to induce a will: requires deception AND reliance
Will Contest: Undue Influence
BLL: The execution or revocation of a will or part of a will is ineffective to the extent the execution or revocation was procured by duress, menace, fraud, or undue influence. Civil Code 1575
Will Contest: Undue Influence - Elements
- execution of influence relates to the will
- improper purpose
- effect = substitute desires of influencer for T’s free will (overpowers will of T)
- but for influences, will would not have been executed
Will Contest: Gift to Drafter
void unless:
- related; OR
- disinterested lawyer
Will Contest: Mistake
- Will fails due to lack of intent
- GR: no relief for mistake in inducement unless there is fraud
Will Contest: Ambiguity
Extrinsic okay if words subject to more than one interpretation
Will Contest: No Contest Clause
- Strictly construed
- Will not apply if:
1. contested gift to drafter
2. forgery
3. revocation
4. claims of undue influence
Formal Attested Will
- in writing
- signed by T (or direct another to sign for T in T’s presence)
- signed during T’s life by 2 attesting witnesses
Formal Attested Will: Witnesses
- present at the same time
- who witnessed T sign or T’s acknowledgment of T’s signature
- who knew it was a will (no need to know contents)
Issue: interested witnesses:
Does not invalidate the will. Rebuttable presumption of undue influence. Overcome the presumption or get intestate share only. (Watch who signs the will and who takes under the will).
-If pourover to Trust, and Trustee signs, Trustee is NOT interested witness.
Holographic Will
- Valid if contains signature + material provisions in handwriting of T + testamentary intent
- If no date + another will, then invalid to extent inconsistency unless time of execution is established
- Note: statement of testamentary intent can be part of a commercially printed will form
Extrinsic Evidence
Admissible:
- to determine whether document constitutes a will
- determining meaning of will or portion if meaning unclear
*standard: clear and convincing evidence
