Wills Flashcards
(37 cards)
Choice of Law
A will is valid in CA if it is executed in accordance with:
(1) California law,
(2) law of state where it is executed, or
(3) law of the place of domicile or abode or where T is a national at the time of execution or death.
Will Formation
(1) WRITING
(2) SIGNED by T or on T’s behalf at T’s direction,
(3) signed or acknowledged by T in joint presence of at least TWO witnesses (who witness it),
(4) SIGNED by the Ws during T’s lifetime, and
(5) UNDERSTOOD to be T’s will by the Ws when witnessed.
Harmless Error
If T dies on or after Jan 1, 2009
MAY be admitted to probate if proponent establishes by CLEAR & CONVINCING evidence that at time of signing, T intended instrument to constitute T’s will.
Interested Witnesses
There is a presumption of undue influence as to the excess (more than intestacy)
Gift lapses if proponent doesn’t overcome presumption.
Holographic Wills
Holographic will or codicil requires
(1) T’s signature and
(2) all material provisions to be in T’s handwriting.
Material Provisions
(1) declaration as will;
(2) dispositive clauses (naming of bequests);
(3) naming of executors, trustee, etc.;
(4) attestation clause; and
(5) signature.
General Capacity
T must understand
(1) the nature of the act (of making a will);
(2) the nature and extent of their property/assets; and
(3) the natural objects of their bounty (close family)
(4) plan of attempted disposition.
Common Law Undue Influence
Presumed UI if B
(1) confidential relationship to a T;
(2) participates in some way in “procuring” a gift; and
(3) unnatural bequest
Statutory Undue Influence
Presumed UI if B
(1) an attorney or caregiver,
(2) the drafter of the instrument, or
(3) in a fiduciary relationship with T and transcribes the instrument.
Standard Undue Influence
Absent presumption of UI, challenger to will must show:
(1) there was influence exerted on T;
(2) that overpowers free will and mind of T;
(3) product of influence was will which wouldn’t have been executed but for influence.
Standard UI Factors
(1) susceptibility of T
(2) B’s relationship & opportunity
(3) B’s disposition to influence T, and utilized actions and tactics designed to exert influence
(4) gift to B was inequitable
Fraud
Execution: false representations re the character or content of an instrument
Inducement: false representations concerning facts that influence T’s motivation.
Mistake
Execution: Where there’s mistake in execution as to character of document (thought wasn’t a will), it cannot be probated for lack of intent to create will
Inducement: Where there’s mistake in the inducement (based on a mistaken belief in untrue facts), no relief unless the mistake and the disposition T would have made but for mistake appearing on face of instrument.
Substituted Judgment
Conservator can make a will or trust, or revoke or modify a trust for a conservatee.
Court can only approve SJ:
(1) after noticed hearing, and only if
(2) conservatee doesn’t oppose the proposed act or lacks legal capacity and
(3) conservatee will be adequately provided for notwithstanding the act.
Revocation Methods
Three methods
(1) by a subsequent will;
(2) by a physical act (cancellation, tearing, blotting out, etc.); or
(3) by operation of law
Striking Out Individual Gift
Strike out of individual bequest is effective as to individual bequest. Need to meet formalities to add. But strike out of one numeral ($1,000 > $100) is permitted.
Revival
Where Will 2 revokes a Will 1, and then Will 2 is itself is revoked by physical act, Will 1 is revived if T’s intent to do so is shown by
(1) the circumstances of the revocation or
(2) from T’s contemporaneous or subsequent declaration.
Can use Extrinsic Evidence to show intent.
Will 2 Revoked By Will 3
provisions of Will 1 only given effect if Will 3 actually republishes those provisions of Will 1 or otherwise explicitly states Will 1 is revived.
no extrinsic evidence
Dependent Relative Revocation
Rule of 2nd best.
When T revokes part/all of will on mistaken belief that NEW disposition, made concurrently, is valid, court will give effect to revoked portion if it is consistent with what the court determines was testator’s intent.
(Revocation and making of new disposition must be simultaneous.)
Codicil
Codicil amends prior will, requires same formalities as will. Codicil is admissible to probate by itself and republishes the date of the will.
Integration
The will consists of all papers or writings
(1) actually (physically) present at the time of execution of will and
(2) that T intended to constitute her will.
Presumed when physically connected OR internal sense of connectedness.
Incorporation by Reference
Separate writing may be incorporated into will by reference if
(1) incorporated writing is in existence as of execution date of will,
(2) will shows T’s intent to incorporate writing, and
(3) writing sufficiently described in will.
Acts of Independent Significance
Court may resolve ambiguity in will by referring to documents or acts effectuated during T’s lifetime, so long as docs/acts are created/done for non-testamentary purpose
Ambiguity & Extrinsic Evidence
Extrinsic evidence is admissible to explain any ambiguity in the will – latent (not on face) or patent (on face).
EE is not admissible to show a will has a meaning to which it is not reasonably susceptible.
