[WILLS] • 7 • Will Execution Requirements •
A valid will requires (1) a writing concerning the distribution of property upon death (2) signed by the testator or someone at his direction and in his presence; (3) the signing must be witnessed by two disinterested individuals (both must be present at the same time); (4) the witnesses must sign the writing during the testators lifetime ; AND (5) the witnesses must understand that they signed the testators will .
In California, after January 1, 2009, a will which complies with the writing and testators signature requirements, but fails to comply with the witnessing requirements, MAY still be admitted to probate if the proponent of the will is able to produce clear and convincing evidence that the testator intended the document to be her will at the time it was signed.
[WILLS] • 7 • Will Execution Requirements • Holographic Will or Codicil
A holographic will (or written alteration to a will) is handwritten and signed by the testator, but not witnessed. In California , a holographic will or codicil is valid if signed by the testator AND all material terms of the will are in the testator's handwriting . Material terms include the name of the beneficiaries and the gifts they will receive .
[WILLS] • 2 • Will Execution Requirements • Testator Gift of Community Property
In any will, a testator may only gift his one-half share of the community property.
[WILLS] • 2 • Terms and Components of a Will by Codicil • Modification by Codicil
To revoke a will through a codicil, there must be intent to do so. A codicil is an instrument made after a will is executed that modifies, amends, or revokes a will. A codicil MUST satisfy the same formalities as a will. Execution of a codicil republishes the will , meaning courts will consider the original will to have been executed on the same date as the codicil to that will. A validly executed codicil will also cure any interested witness problems with the original will.
[WILLS] • 1 • Terms and Components of a Will by Codicil • Ambiguities in a Will
A court will consider extrinsic evidence to clarify any ambiguities in a will.
[WILLS] • 4 • Terms and Components of a Will by Codicil • Acts of Independent Significance
A court may use an act of independent significance to fill in the gaps of a will. Acts of independent significance are those with significance outside of the will-making process (acts that have no testamentary affect).
[WILLS] • 1 • Terms and Components of a Will by Codicil • Integration
Documents will be integrated into a will if the testator intended them to be part of the will AND they were physically present at the time of the wills execution .
[WILLS] • 3 • Terms and Components of a Will by Codicil • Incorporation by Reference
A document or writing may be incorporated into a will by reference if it (1) was in existence at the time the will was executed ; (2) is sufficiently described in the will; AND (3) the testator intended to incorporate it.
[WILLS] • 1 • Revocation of a Will • By Physical Act
A will is revoked by physical act IF the testator intended to revoke the will AND the will is burned, torn, destroyed, or cancelled by the testator or someone at his direction and in his presence.
[WILLS] • 4 • Revocation of a Will • By Subsequent Will or Codicil
A testator can revoke a will by executing a subsequent valid will or codicil .
[WILLS] • 2 • Revocation of a Will • By Divorce
In California , any gifts to a spouse are revoked upon divorce.
[WILLS] • 1 • Revocation of a Will • Partial Revocation of a Will
A testator may make a partial revocation of a will he intends to revoke (by lining through or crossing out a portion of the will). However, he CANNOT increase a gift in a will through a partial cancellation; this must be done by adhering to will formalities. Partial revocation of a holographic will may be done through interlineation (writing between the lines of a will).
[WILLS] • 2 • Revocation of a Will • Dependent Relevant Revocation
The dependent relevant revocation doctrine cancels a revocation that was made under a mistaken belief of law or fact by the testator. The doctrine applies when the testator would not have revoked his original will but for the mistaken belief that another will he prepared would be valid.
[WILLS] • 3 • Revocation of a Will • Revival of Revoked Wills and Republication by Codicil
Revoked wills may be revived under certain circumstances. A will revoked by physical act will be revived if a testator shows intent for its revival. A will revoked by subsequent instrument can be revived if the testator republishes the will by a subsequent will or codicil that complies with the will execution formalities.
[WILLS] • 1 • Choice of Law in Determining Will Validity •
In California , a will is valid if it is valid in the state (1) in which it was executed ; (2) in which the testator was domiciled at the time of execution; OR (3) in which the testator died .
[WILLS] • 3 • Challenging Validity of a Will • Testamentary Capacity
To have sufficient capacity to execute a will, a testator must (1) be at least 18 years old ; (2) understand the nature and extent of her property; AND (3) understand the natural objects of her bounty (i.e. her relatives and friends).
[WILLS] • 3 • Challenging Validity of a Will • Interested Witness
A will is only valid if it is signed by the testator in the presence of two disinterested witnesses . Any gifts to an interested witness (a beneficiary under the will) are presumed invalid . If an interested witness cannot overcome this presumption, he will only take his intestate share of the estate.
[WILLS] • 1 • Challenging Validity of a Will • Fraud
A will is fraudulent if a person (1) intentionally made a misrepresentation; (2) of material fact ; (3) in order to induce the testator to either sign the will or change the contents of the will; AND (4) the testator did so.
[WILLS] • 3 • Challenging Validity of a Will • Undue Influence
A prima facie case of undue influence is established if (1) the testator had a weakness (physical, mental, or financial) that made him susceptible to influence ; (2) the wrongdoer had access to the testator and an opportunity to exert influence; (3) the wrongdoer actively participated in drafting the will; AND (4) there is an unnatural (unexpected) result .
A common law presumption of undue influence is established if (1) a confidential relationship existed between the testator and the wrongdoer; (2) the wrongdoer actively participated in the drafting the will; AND (3) there is an unnatural result .
In California, a statutory presumption of undue influence is established if the testator makes a donative transfer to (1) the person who drafted the will ; (2) a care custodian of a testator who is a dependent adult; (3) a person in a fiduciary relationship with the testator; (4) a person who is a spouse, domestic partner, employee, or related by blood to a person in the one of the previous three circumstances; OR (5) a partner, shareholder, or employee of the law firm in which a person who drafted the will or one in a fiduciary relationship with the testator has an ownership interest . Under a prima facie case and common law presumption, the affected provision will be invalid . However, under the statutory presumption, the gift to the wrongdoer lapses .
[WILLS] • 1 • Rules Regarding How Assets Pass • Terms of a Will Given Effect When Probated
The terms of a will are given effect at the time the will is probated OR after the testators death .
[WILLS] • 3 • Rules Regarding How Assets Pass • Lapse of Gift and Anti-Lapse Statute
A gift lapses and returns to the residual estate if a beneficiary does not exist at the time of a testators death . However, CA has an anti-lapse statute, under which a gift will not lapse, but instead pass to the deceased beneficiarys issue. The anti-lapse statute applies only if the deceased beneficiary (1) was related by blood to the testator ; (2) was survived by issue ; AND (3) there is no contrary intent . The anti-lapse statute also applies to a member of a class gift.
[WILLS] • 1 • Rules Regarding How Assets Pass • General Gifts
A general gift is nonspecific and is satisfied from any of the funds remaining in a testators estate.
[WILLS] • 1 • Rules Regarding How Assets Pass • Specific Gifts
A specific gift is one that is specifically identified such as, real property or personal property.
[WILLS] • 1 • Rules Regarding How Assets Pass • Demonstrative Gifts
A demonstrative gift is a hybrid of a specific and general gift where the testator makes a general gift (a specific amount of money), but also identifies a specific source that the gift should come from.
[WILLS] • 2 • Rules Regarding How Assets Pass • Residual Gifts
A residual gift is a gift of any property remaining after the distribution of the estate to identified beneficiaries
[WILLS] • 2 • Rules Regarding How Assets Pass • Ademption
A specific gift is adeemed by extinction if the testator does NOT own it at the time of death. This can occur when the testator makes a specific gift, but the property is later destroyed or sold before the testators death. In California, a specific gift is adeemed ONLY IF the testator intended the gift to fail .
[WILLS] • 2 • Rules Regarding How Assets Pass • Abatement
Abatement, the process of reducing gifts , occurs when assets are insufficient to cover debts, expenses, and gifts. Gifts abate depending on class and in the following order: residuary, general, and then specific. Gifts within each class are abated equally .
[WILLS] • 4 • Intestate Estates and Succession • Intestate Distribution
A surviving spouse is entitled to (1) one-half of the decedents community and quasi-community property ; AND (2) all of the decedents separate property UNLESS the decedent leaves issue, parents, or issue of parents, in which case the spouse will either receive one-half (if the decedent left only one issue) OR one-third (if the decedent left more than two issue). Any share that does NOT pass to the surviving spouse is passed in the following order: issue, parents, parents issue, grandparents, grandparents issue, etc.
[WILLS] • 1 • Intestate Estates and Succession • California Probate Code 240
Under Section 240 of the probate code, ALL property in intestacy shall pass to the next living generation , then to the issue of deceased members of that generation .
[WILLS] • 1 • Intestate Estates and Succession • Adopted Children