3) each of whom witnesses the testator's signing of the will.
4) Both witnesses must understand that the document they signed was the testator's will.
What is an interested witness?
A witness to the will who is also a devisee under the will is an interested witness.
Rule for interested witnesses?
CL: an interested witness is deemed incompetent, and the will is held invalid
CA: if one of the two witnesses is interested, the will is still valid. but there is a rebuttable presumption that the witness procured the devise by duress, fraud, or undue influence.
if the interested witness cannot rebut, then the provision in the will for the interested witness is purged
What is a specific devise?
A specific devise is a gift of a particular item of property distinct from all other objects in the testator's estate.
What is a general devise?
A general devise is a gift of general economic benefit.
Beneficiary predeceases the testator?
CL: Under CL, a devise that dies after T executes his will, but before the gift becomes effective, the gift lapses (fails).
When a specific gift lapses, it falls into the residuary estate.
CA: CA has enacted anti-lapse statutes that provide a substitute beneficiary to avoid this harsh result.
CA anti-lapse statute applies if devisee who predeceased the testator was:
1) kindred of the testator, or
2) testator's spouse
Under CA law, the substituted issue take the devise per capita with right of representation.
When does anti-lapse statute not apply?
When the will expresses a contrary intention or a substitute disposition.
Under CA law, the requirement that a devisee survive the testator by 30 days clearly constitutes a contrary intention.
Parol evidence for the will?
The disposition of ___ depends on whether or not the document is probated as part of T's will.
The question is whether an extrinsic document can be admissible for the will's composition.
2. Incorporation by Reference
3. Acts of Indepenent Significance
5. Secret Trust
Integration - elements?
This doctrine permits papers or writings that:
1) were present at the time of execution that
2) testator intended to constitute her will
to be part of her will.
Incorporation by reference - elements?
A document may be incorporated by reference into the will so that it is considered part of the will.
The document (or writing) must be:
1) clearly in existence at the time of execution
2) clearly ID'd in the will
3) T intended to incorporate the document into the will
[if 1-2 is satisfied, 3 is implied]
it is irrelevant if the document itself is not a valid will.
Acts of Independent Significance - elements?
This doctrine permits a court to fill in certain blanks in the testator's will with documents (or acts) effectuated during T's lifetime.
The documents must have been effectuated for primarily nontestamentary motives.
Codicil - elements?
Codicil is a testamentary instrument executed subsequent to the execution of a will.
A codicil is intended to modify, alter, or expand the will.
To be valid, codicil must be executed with the same statutory formalities required for the execution of a will.
Secret trust - elements?
A secret trust results when a gift is made in reliance upon the beneficiary's promise to hold the gift property in trust for another.
To prevent the unjust enrichment of the named beneficiary, courts will allow the intended trust beneficiary to offer extrinsic evidence of the agreement.
If the agreement is proved with clear & convincing evidence, a constructive trust is imposed on the named beneficiary.
Named beneficiary = secret trustee
1) will makes a gift on its face to a A [secret trustee]
2) but the gift is given on the basis of an *oral promise* by A to use the property for the benefit of B
Semi-Secret trust - elements?
If a gift in trust is made to an unnamed beneficiary, it is a semi-secret trust.
A semi-secret trust is unenforceable becuase it does not comply with the statute of wills.
Parol evidence is inadmissible for a semi-secret trust.
Semi-secret trust vs. secret trust?
Depends on whether the court characterizes the devise as a secret or semi-secret trust. This affects the admissiblity of the oral testimony, proving the actual beneficiary and the intent by the testator to give to the actual beneficiary.
What happens if T gets rid of property before he dies?
When a specific gift is no longer owned by T at the time of death, the gift is adeemed, and the beneficiary is not entitled to the proceeds of the specific gift or any property in lieu of the gift.
In some states, if there has been a complete extinction of the property, the intention of T is irrelevant, the gift is considered adeemed.
In CA, however, ademption depends on T's intent to adeem at the time he disposes of specific property.
1. Physical act
2. Subsequent written instrument
3. Operation of Law
Revocation by physical act?
1. Will must be burned, torn, cancelled (lined out), destroyed, or obliterated (erased)
2. T must have simultaneous intent to revoke
3. Act must be done by T or someone in T's presence at his direction
Revocation by subsequent written instrument?
1. Express - new will says "i revoke all old wills"
2. Implied - new will disposes of all of T's estate, leaving nothing for old will to act upon
What gets probated if there is a revocation of a codicil, that itself revoked a prior will?
Under CA law, if a codicil is revoked, it does not revoke the prior will. The prior will gets probated.
Revival of a devise?
CL: if a codicil (revoking a gift in a prior will) is revoked, the revocation of the codicil revives the original gift.
CA: revival of the devise depends on T's intent. extrinsic evidence is admissible to prove T's intent to revive the devise in the will.