Wills

Question 1

Formally Executed Wills are:

Answer 1

🤢 SPU
Signed or Acknowledged by T in
Presence of 2 W’s who
Understand that instrument is T’s will before T dies.
CA: W’s don’t have to sign in presence of each other or T. Ts and Ws can sign anywhere.
Substantial Compliance Doctrine: deemed valid so long as clear and convincing evidence of T’s intent at time T signed will.

Question 2

Holographic Wills ✋

Answer 2

Sign My-Pruny Hand
A valid holographic will includes the signature, material provisions (persons and property) and in the handwriting of the testator. Date not required, but may present inconsistency or capacity issues.

Question 3

Pretermitted / Unknown Children Exceptions

Answer 3

IPO
If a is child born after testamentary instruments are executed and not provided for → child will get intestate share + share of assets in a trust.
Exceptions:
INTENTIONAL on face of instrument;
assets transferred to PARENT of omitted child; or
child provided for OUTSIDE of testamentary instrument, e.g. annuity.

Question 4

Surviving Issue & Sole Property Share (How many 👶?)

Answer 4

Surviving Spouse takes all CP.
For SP:
💯 if no children.
1/2 if one child. 👶
1/3 if MORE than one child.👶👶

Question 5

Revocation of Will by Physical Act 🔥

Answer 5

A will may be revoked in whole or in part by being burned, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking it by the (1) testator performing the act or (2) another person in the testator’s presence + direction.

Question 6

Revocation by Subsequent Instrument

Answer 6

A will may be revoked in whole or in part by: a subsequent will that contains express terms or implied (Will #2 totally disposes for T’s estate)

Question 7

Incorporation By Reference 👉 DIET

Answer 7

DIET
Document or a writing;
Identified clearly in will; &
Existed when will was executed;
Testator intended to incorporate doc into will (assumed if above are proven).

Question 8

Dependent Relative Revocation (DRR)

Answer 8

Disregards revocation (physical act or subsequent instrument) caused by mistake.
Requirements: T revokes will in mistaken belief that a substantially identical will or codicil effectuates testators intent. By operation of law, revocation of the first is deemed conditional, dependent and relative to second will effectuating T’’s intent.
📝 If 2nd will is invalid because of fraud or execution, then revocation of 1st is invalid too, and will #1 was never revoked.

Question 9

Undue Influence 🥣 SOUP / CORE

Answer 9

🥣 SOUP (Common Law)
Susceptible to Influence
Opportunity to Influence
Unnatural Bequest
Active Participation

✨CORE (CA Statutory)
Causes Another To Act or Refrain
Overcomes their Free Will
Results in Inequity
Excessive Persuasion

Question 10

Lapse 💀 and Anti-Lapse 💉👨‍👧‍👧

Answer 10

Lapse - A beneficiary dies before the testator. 💀 Thus, the gift fails because it doesn’t matter if it’s real or personal, property can’t be conveyed to dead people.

Anti-lapse operates to save the gift if beneficiary (1) 💉 was blood relative and (2) 👨‍👧‍👧 left descendants who survived the testator. The beneficiary’s descendants are substituted and take by representation under the anti-lapse statute. The anti-lapse statute does not apply if there is a contrary will provision that expressed intention otherwise.