Wills

Front 1

capacity

Back 1

* 18 years of age

* Understand extent of your property

* Know the natural objects of your bounty (children)

* Understand the nature of the testamentary act

Lack of capacity = entire will invalidated

Front 2

insane delusion

Back 2

False belief

Product of sick mind

Not even a scintilla of evidence supporting testator’s belief.

Must affect disposition in the will

Will is invalid.

Front 3

fraud/ 2 types

Back 3

Fraud in exection (forgery; signature believing it is something other than a will) invalidates entire will.

Fraud in inducement: Representation of material fact for purposes of inducing action or inaction, known to be false by the wrongdoer, which induces the action or inaction. Must actually affect disposition. Only the affected part of the will is invalidated. Remedy can include constructive trust.

Front 4

undue influence

Back 4

Testator’s free will has been subjugated or dominated

* Susceptible testator

* Wrongdoer’s active participation getting T to change will

* Wrongdoer benefits (directly or indirectly)

* Unnatural result (child pressuring mom to name child in will is not unnatural)

Presumption which shifts burden: Confidential relationship (very broad – incl astrologer/client, mistress, etc.), wrongdoer’s active participation, wrongdoer benefits directly/indirectly, unnatural result. Invalidates only affected portion.

Any will provision making donative transfer to drafter of will or his family is invalid unless drafter is related to or lives with T, or will reviewed by independent lawyer.

Front 5

mistake

Back 5

* Content: No relief for accidental omission; accidental addition is stricken out. Courts won’t add something to the will, but will remove terms.

* Execution: Wrong document signed, so not probated. Exception: Reciprocal wills, spouses accidentally sign each others – will be probated.

* Inducement: Erroneous belief – no relief unless mistake and true intent appears on face of will.

* Description (ambiguity): Admit extrinsic evidence.

Front 6

dependent relevant revocation
(DRR)

Back 6

Mistake in validity of a subsequent testamentary disposition.

T revokes will, and creates new testamentary disposition. New disposition is invalid. DRR resumes that the revocation was dependent on the validity of the new disposition, and if the new disposition fails, the revocation is "undone".

If Will #2 is revoked by physical act, Will #1 is revived if T so intended (extrinsic evidence ok).

Front 7

pretermission

Back 7

If T writes will, and after writing the will T marries or has child, and never rewrites will, then that new spouse or child is considered omitted. Law provides that the new spouse or child can get full intestate share, in addition to CP/QCP rights.

Includes child who was in existence before will was written, if testator mistakenly believed child was dead before spouse was written.

Front 8

formalities of execution

Back 8

Statute of wills requires:

* Writing (extrinsic evidence ok to prove contents if writing is lost or destroyed)

* Signed anywhere on the writing by T (but if signature is above text, possible integration problem).

* T must sign will, acknowledge signature (oral ok), or acknowledge will (oral ok), in presence of two witnesses, both present at same time. W’s must only be in "conscious presence" of T – ER/ICU type situation where W’s can’t get close enough, only have to be conscious of the fact that T is signing will. W’s must at some point sign the will as formal witnesses.

* Witnesses must know that it is T’s will.

Front 9

interested witness

Back 9

Rebuttable presumption that interested witness takes lesser of bequest in the will or what he would have taken if will was never written.

If it is shown that witnesses actually procured the gift through duress, fraud, etc. he is not entitled to any portion of the gift.

Exceptions: Two other non-interested witnesses; witness/beneficiary only takes as a fiduciary.

Front 10

incorporation by reference

Back 10

* Writing

* In existence at time will was published (if not, still ok if will is republished after incorporated document comes into existence)

* Clearly identified

* T intended to incorporate (indicated by language in will)

Front 11

pour-over wills

Back 11

Ways of getting trust incorporated:

* Incorporation by reference: Document must be in existence at time incorporated.

* Independent legal significance: Referenced trust has independent significance if properly funded. If not properly funded, no independent significance.

* Uniform Additions to Testamentary Trusts Act: Valid trust at time will was executed (even if unfunded) can result in property pouring out to whomever is designated on day of T’s death. Eliminates need of relying on incorporation by reference or independent legal significance.

Front 12

holographic wills

Back 12

Will is signed anywhere (potential for integration problems), naming beneficiaries (in T’s handwriting), gifts to beneficiaries (in T’s handwriting), testamentary intent ("this is my last will & testament) in T’s handwriting, preprinted form, or proven by extrinsic evidence.

Dates aren’t necessary, but problems can arise with inconsistent wills (consistent provisions probated; inconsistent provisions not probated) or capacity problems (if will is undated, and T lacked capacity at some point during which the will could have been written, even if briefly, will is invalid). Some jurisdictions require dates in writing of testator.

Handwritten changes are effective.

Front 13

codicils

Back 13

Must comply with statute of wills (writing, signed)

Automatically republishes will, therefore child born after will is executed but before codicil is not a pretermitted child.

Rebuttable presumption that gift in codicil is cumulative to gift in will, not a substitute.

Revocation of codicil does not revoke will; revoking will revokes codicils unless T didn’t intend.

Front 14

after acquired property

Back 14

Stock splits and dividends: Specific legatee is entitled to additional shares; general legatee is not entitled, and they go into the residuary.

Front 15

choice of law

Back 15

Will will be probated in CA courts if valid under laws of CA, laws of state where executed, or laws of state where T domiciled while will was written.