Wills

An attested will is a formal will that is signed by the required number of witnesses

An unwitnessed hand written will.  Required to be in the testator's own handwriting

An oral will

A testator must

• 1) have present testamentary intent,
• 2) have capacity, and
• 3) follow the jurisdictional formalities

Testators are presumed to have the capacity to execute wills. Must be at least 18 and of sound mind.  Testator must understand the nature of the testamentary act, Understand the nature and situation of his property, and remember and understand his relations with family members that are affected by the will.

People are presumed to intend the consequences of their actions, and this applies to execution of wills

A will must

1) make some testamentary disposition,

2) be signed by the testator,

3) in the presence of two (some jurisdictions three) attesting witnesses who

4) also sign in the presence of the testator and each other, and

5) the witnesses must know they are witnessing a will.

Generally a witness with a “beneficial interest” in the will, may attest to a will. However, the interested witness will not be able to take under the will

Interested witnesses may not take more than their intestate share under a will, but their attestation is effective.

A holographic will is not witnessed, but must have the signature and material provisions handwritten by the testator

Nuncupative wills are oral wills that are recognized in some states ( not California), but only in limited circumstances.  Generally, nuncupative wills are only recognized when made while in immediate danger of death, and generally only affect personal property.

A reference in a will that has significance apart from testamentary disposition, will be given effect in a will

A separate document in existence at the time the will is executed, and specifically mentioned in the will, may be incorporated into the will.

This is a change or amendment to a pre-existing will and is executed with the same formalities as a will

The law makes no distinction between full-blooded  and half-blooded relatives.

The modern trend is to not differentiate between adopted children and natural child.

Children born out of wedlock have the same inheritance rights a children born during marriage, in many states, including California.

A very small minority of states restrict the rights of nonresident aliens to inherit.

Children born or adopted after a will is executed receive an intestate share unless they have obviously been omitted.

A surviving spouse who married the testator subsequent to the will, receives an intestate share (not to exceed one half) if he is not included in the will, unless the omission was obviously intentional

Testamentary dispositions to a spouse are revoked as a matter of law at dissolution (but not separation.)

One who feloniously and intentionally kills the decedent may not acquire or benefit from the decedent as a result of the killing

If an heir does not survive the decedent by 120 hours, the decedent’s property will be distributed as though the heir had pre-deceased the decedent.

If a beneficiary who is a blood relative predeceases the testator, the gift will pass to the issue of the predeceased beneficiary

If a decedent dies without leaving a will, a gift made during life will not count as satisfaction of an intestate share, unless there is a writing to the contrary.

If a decedent left a will, advancements are not counted against it.

A gift made subsequent to a will shall not be counted against the will in California, absent a writing to that effect

Traditionally, unambiguous wording could not be impeached

A will that is mistakenly executed is invalid

The modern trend, and California rule, is to allow extrinsic evidence to interpret the testator’s words unless the words cannot reasonably be interpreted that way.

Unless it is obvious from the document itself, testamentary dispositions motivated by mistaken beliefs are not invalid

If, because of a mental disorder, a testator makes a disposition he would not have made but for the disorder, he lacks mental capacity.

A testamentary disposition that the testator was either physically or mentally coerced into making is invalid

A fraudulently induced testamentary disposition is invalid

A particular piece of property

A non-specific piece of property to come from the general estate - usually money

Specific gift: If a specific gift is present it must go to the beneficiary. On the other hand a specific gift that is not in the estate results in a total loss to the beneficiary.  General gift: General gifts may be pro-rated downward if the estate’s assets are insufficient to make all the gifts; however, they generally cannot be defeated totally.

Demonstrative gifts are payable first from a specific source, and if that source is insufficient, then from the rest of the estate

Generally stock splits and dividends are distributed the same as the original shares of stock

Contracts not to change a will, or to name one in a will, are governed by contract law. They must be established by a writing, and the usual remedy is to impose a constructive trust.

Applies where the property has changed form from that identified in the will

If the specific item identified in the will is not part of the estate at the time of the testator's death, the gift is void and the purported devisee takes nothing.  


Courts will look at the testator's intent and will determine if the gift is void or if the beneficiary is entitled to a general pecuniary gift of equal value.

Apply when the persons taking under a will are no longer alive at the time of the testator's death.

Traditionally - with a beneficiary predeceased the testator, the gift to the beneficiary lapsed and fell into the residue or was distributed via intestate succession if there was no residue

Modernly and in CA, when a beneficiary predeceases the testator, the issue of the beneficiary take his place, thus avoiding the lapse of the gift, unless a contrary intention appears in the will.

Antilapse only applies if the beneficiary is a person who is kindred to the testator or kindred of a surviving, deceased, or former spouse of the testator.

Issue will take per capita

Antilapse also applies to class gifts

Wills can be revoked partially or totally, by executing a subsequent inconsistent will or codicil, or by scratching out with intent to do so

Actions such as burning of any part, tearing of a material part, scratching out the words of the will, writing void on the face of the will or scratching out the signature, revoke the will if done with the intent to do so.

A lost will, or one destroyed without intent to revoke, may still be probated in many jurisdictions upon proof of its content

when a testator revokes a previously executed will based on the misconception that a subsequently executed instrument is effective, the revocation can be set aside.

if will two is revoked and extrinsic evidence demonstrates that the testator’s intent was to revive the will number one, then will one will be given effect

A will is revoked by operation of law to accommodate an omitted spouse or child or subsequent domestic partner or to remove all devises to a previous spouse after a divorce

An omitted child or spouse will receive an intestate share if they were born or married after the will was made, unless they were 

• Intentionally omitted as indicated on the face of the will
• Otherwise provided for outside the will with an intent to do so in lieu of the will or
• The decedent had one or more children and devised substantially all of the estate to the other parent of the omitted child

Property not disposed of by a will passes via intestate succession.

A statutory scheme whereby property not distributed by will is distributed.

Real Property is generally distributed according to the laws of its location

Distribution of personal property is governed by the laws of the decedent’s domicile.

The half interest that the decedent owns passes to the surviving spouse.

Property held in joint tenancy passes to the surviving joint tenant.

Each tenant in common has a separate interest with no right of survivorship in the property, and if that interest is not disposed of via will, it is disposed of according to the laws of intestate  succession.

A) If there is no surviving issue, parent, siblings, or issue of deceased siblings, then the surviving spouse takes all the decedent’s separate property.  


B) If there is only one surviving child, or issue of a deceased child, or no issue but there are parent(s) or their issue, then the surviving spouse takes one half.  

C) If there is more than one surviving child, or one living child and issue of deceased children, or issue of two or more deceased children, then the surviving spouse takes one-third.

If a spouse dies intestate and leaves no surviving spouse or issue, then real property acquired via a previously deceased spouse (i.e. from a previous marriage ) less than 15 years prior, is returned to the predeceased spouse’s family.

If a spouse dies intestate and leaves no surviving spouse or issue, personal property worth $10,000 or more when previously the deceased spouse died, and acquired via a previously deceased spouse (i.e. from a previous marriage) who died not more than five years ago, is returned to the previously deceased spouse’s family.

If no spouse, parents, or issue of parents survive a decedent, then the estate goes to the surviving grandparents or their issue, per representation.

If there is no surviving spouse, grandparents or their issue, then the decedent’s estate passes to the predeceased spouse’s issue per representation.

If there is no surviving spouse, grandparents or their issue, nor issue of predeceased spouse, then the estate goes to the next of kin by statutory formula.

Most states provide that a surviving spouse is entitled to one third to one half (depending on whether or not there are children) of the deceased spouse’s estate.

A surviving spouse must choose whether to take her statutory share or to take under the decedent spouse’s will, if the two conflict

Gifts made in an attempt to defeat a spouse’s statutory share may be set aside.

Only those who will directly benefit if a will is invalidated may contest it.

In order to be mentally competent to make a will, one must:

• 1) understand the significance of his act,
• 2) know the extent of his assets,
• 3) know who his benlogical beneficiaries are, and
• 4) understand the disposition he is making

• CP - All CP or quasi CP goes to surviving spouse or domestic partner
• SP - surviving spouse takes all of it only if the decedent did not leave any surviving issue, parents, siblings or issue of siblings
• Surviving Sp + one child/parents /siblings - Spouse gets 1/2, child/parents/siblings get 1/2
• Surviving Sp + more than one child/issue - Spouse gets 1/3, children get 2/3
• To Issue
• to Parents, if no issue
• Issue of Parents
• Grandparents
• Issue of Grandparents
• Issue of pre-deceased spouse/partner
• Next of kin
• Parents of Pre-deceased spouse
• Issue of parents of Pre-deceased spouse/partner

When intestate succession applies per capita at each generation distribution, the first generation with living takers is allocated a share in which all living persons at that generational lever are combined and then divided equally among the takers at the next generational level in the same way, resulting in persons of the same degree of kinship taking in equal shares

Makes an equal distribution at the first level of living heirs.  If any of those heirs are deceased and leave issue still living, their share will be distributed equally between their issue. If any deceased heirs don't leave issue, then their share will be added back to the original distribution and divided among the remaining closest heirs

Makes an equal distribution at the first level in which there are surviving heirs or deceased heirs who left issue, the issue of the deceased heirs share their parents share equally

Proving the contents fo a contract to make a will, to revoke a will, or to not revoke it or to die intestate, may be established by one of the following:

• A provision in the will that states the material provisions of the contract
• an Express reference in a will or other instrument to a contract, and extrinsic evidence that proves the terms of the contract
• A writing signed by the decedent evidencing the contract, or
• Clear and convincing evidence of an agreement that is enforceable in equity
• The existence of joint or mutual wills does not create a presumption of a contract to make or revoke a will

Fraud is the misrepresentation, deceit, or concealment of a material fact, known to be false by the wrongdoer, with the intent to deprive a person of property or legal rights or cause injury and does in fact deprive that person.  There are three points in the process where fraud can occure - 

• Fraud in the execution
• Fraud in the inducement
• Fraud in preventing revocation

Occurs when a testator is unaware he is signing a will or the will is forged by another, resulting in the entire will being invalid

Occurs when a wrongdoer influences the testator through misrepresentations to include provisions in a will, resulting in only those particular fraudulent provisions being invalid

Occurs when fraud is implemented to prevent a will revocation, a court will still probate the will and the wrongdoer will take under a constructive trust

• this is found then the testator executes a will leaving an unnatural disposition of his property and 
• the beneficiaries had opportunity to influence this disposition, and
• The testator was susceptible to their influence and
• The beneficiaries were active in procuring this disposition

a codicil is an amendment to an existing will made by the testator to change, explain, or republish his will.  It must meet the same formalities as a will or holographic will.

Revocation of a codicil does not revoke the underlying will.  but revocation of a will also revokes the codicil

A validly executed codicil operates as a republication of the will as of the date on the codicil

A pour-over will is a will tat identifies a trust created by the testator that he can use to "Pour-over" his probate assets into and thus avoid going through probate if the assets are less than $100K.  The pour over will requires:

• the trust is identified in the will
• the terms are set forth in an instrument other than the will, and 
• the trust was executed concurrently or before the will execution