Wills short rules.txt

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Wills short rules.txt
2013-07-13 00:08:57
ca bar wills short rules

ca bar wills short rules
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  1. 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.
  2. What is an interested witness?
    A witness to the will who is also a devisee under the will is an interested witness.
  3. 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
  4. 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.
  5. What is a general devise?
    A general devise is a gift of general economic benefit.
  6. 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.
  7. 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.
  8. 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
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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
    • Elements:
    • 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
  14. 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.
  15. 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.
  16. 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.
  17. Revocation?
    • 1. Physical act
    • 2. Subsequent written instrument
    • 3. Operation of Law
  18. 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
  19. 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
  20. 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.
  21. 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.