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Requirements for a formal will?
- formal will = typed will
- A formal will must be:
- 1) signed by the testator
- 2) signed by 2 witnesses
- 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.
- 1. Integration
- 2. Incorporation by Reference
- 3. Acts of Indepenent Significance
- 4. Codicil
- 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.