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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
General Requirements for a will
A testator must
- 1) have present testamentary intent,
- 2) have capacity, and
- 3) follow the jurisdictional formalities
Presumption and Capacity
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.
Presumption and Testamentary Intent
People are presumed to intend the consequences of their actions, and this applies to execution of wills
Requirements of Formal Will
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.
Competency of Witnesses
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
Competency of Witness in California
Interested witnesses may not take more than their intestate share under a will, but their attestation is effective.
Requirements of Holographic Will
A holographic will is not witnessed, but must have the signature and material provisions handwritten by the testator
Nuncupative Wills and Limited Circumstances
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.
Acts of Independent Significance
A reference in a will that has significance apart from testamentary disposition, will be given effect in a will
Incorporation by Reference
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
Half-blooded Relatives vs. Full-blooded
The law makes no distinction between full-blooded and half-blooded relatives.
Inheritance and Adopted Children
The modern trend is to not differentiate between adopted children and natural child.
Inheritance and Children Born Out of Wedlock
Children born out of wedlock have the same inheritance rights a children born during marriage, in many states, including California.
Aliens and Inheritance
A very small minority of states restrict the rights of nonresident aliens to inherit.
Pretermitted Children and Inheritance
Children born or adopted after a will is executed receive an intestate share unless they have obviously been omitted.
Pretermitted Spouse and Inheritance
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
Dissolution and Wills
Testamentary dispositions to a spouse are revoked as a matter of law at dissolution (but not separation.)
Killers of the Decedent and Acquisition of
One who feloniously and intentionally kills the decedent may not acquire or benefit from the decedent as a result of the killing
Simultaneous Death and Inheritance
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.
Advancements and Wills
If a decedent left a will, advancements are not counted against it.
California: Satisfaction of Legacies
A gift made subsequent to a will shall not be counted against the will in California, absent a writing to that effect
Traditional View Re: Ambiguities
Traditionally, unambiguous wording could not be impeached
Mistakes and Will Execution
A will that is mistakenly executed is invalid
Modern Trend Re: Ambiguities and Testamentary Documents
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.
Testamentary Dispositions Motivated by Mistaken Beliefs
Unless it is obvious from the document itself, testamentary dispositions motivated by mistaken beliefs are not invalid
Mental Disorders, Delusions, Hallucinations, and
If, because of a mental disorder, a testator makes a disposition he would not have made but for the disorder, he lacks mental capacity.
Under Influence and Free Will
A testamentary disposition that the testator was either physically or mentally coerced into making is invalid
Wills and Fraud
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
Significance of Specific vs. General Gifts
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
Stock Splits and Gifts
Generally stock splits and dividends are distributed the same as the original shares of stock
Contracts and Wills
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
Revocations and Wills
Wills can be revoked partially or totally, by executing a subsequent inconsistent will or codicil, or by scratching out with intent to do so
Revocation of Will by Physical Act
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
Dependent Relative Revocation
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.
Revival of Revoked Wills
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
Revocation by operation of Law
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
Omitted Child or Spouse
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
Death without a Will or Estate Plan
Property not disposed of by a will passes via intestate succession.
A statutory scheme whereby property not distributed by will is distributed.
Intestate Succession of Real Property
Real Property is generally distributed according to the laws of its location
Intestate Succession of Personal Property
Distribution of personal property is governed by the laws of the decedent’s domicile.
Intestate Succession of Community Property
The half interest that the decedent owns passes to the surviving spouse.
Intestacy and Joint Tenancy
Property held in joint tenancy passes to the surviving joint tenant.
Intestacy and “Tenants in Common”
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.
Intestate Succession of Separate Property and Spouses
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.
Intestate Succession and Ancestral Real Property
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.
Intestate Succession and Ancestral Personal
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.
Intestacy When No Surviving Spouse, Parents, or Their Issue
If no spouse, parents, or issue of parents survive a decedent, then the estate goes to the surviving grandparents or their issue, per representation.
Intestacy When No Surviving Spouse, Grandparents or Their Issue
If there is no surviving spouse, grandparents or their issue, then the decedent’s estate passes to the predeceased spouse’s issue per representation.
Intestacy and No Surviving Spouse, Grandparents or Their Issue, or Issue of Predeceased Spouse
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.
Protection of Spouses in Non Community Property States
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.
Surviving Spouses and Elections
A surviving spouse must choose whether to take her statutory share or to take under the decedent spouse’s will, if the two conflict
Attempts to Defeat Elective Share
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.
Wills and Mental Capacity
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
Intestate Succession Order (CA)
- 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
- 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
Per Capita Distribution
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
Per Stirpes or Per Capita with Representation
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
Strict Per Stirpes
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
Contracts relating to wills
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 in the making of 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
Fraud in the Execution
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
Fraud in the inducement
Occurs when a wrongdoer influences the testator through misrepresentations to include provisions in a will, resulting in only those particular fraudulent provisions being invalid
Fraud preventing Revocation
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
Revocation of a codicil does not revoke the underlying will. but revocation of a will also revokes the codicil
Republication of a Codicil
A validly executed codicil operates as a republication of the will as of the date on the codicil
Pour Over Will
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