Wills

Execution

WSW

• Writing

• Signed

  • Signed by testator or signed by someone in testator’s presence, and at his direction

• Witnessed

  • Witnesses must know the document is a will

  • Both must be present at the same time to witness the testator sign the will or acknowledge the signature

  • Both must sign, but not necessarily in each others’ presence or at the same time, so long as both sign during the testator’s life

Issues with witnesses

• If witness requirements are not satisfied, the will can be treated as properly executed if the proponent establishes by “clear and convincing evidence” that testator intended the document to be his will at the time he signed it

• Interested witnesses create a rebuttable presumption that witnesses procured the devise by duress, menace, fraud, or undue influence unless there are two other uninterested witnesses

Holographic wills

• Don’t comply with formalities, but the signature and material provisions are all in the testator’s handwriting

• If it is undated and conflicts with another will, it is invalid wrt any inconsistencies

Capacity and intent

• Testator must be of legal age and sound mind

• No duress, menace, fraud, undue influence

• Fraud

  • 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.

  • Can happen at three points in the process

    • Fraud in the execution: testator doesn’t know he’s signing a will

    • Fraud in the inducement: wrongdoer influences testator to include certain provisions in the will

    • Fraud in preventing execution or revocation

• Common law undue influence—SOUP

  • Susceptible to the influence

  • Opportunity to influence

  • Unnatural disposition

  • Active in Procuring this disposition

• California statutory undue influence

  • Requirements

    • Excessive Persuasion

    • That Causes another person to Act or Refrain from acting

    • By Overcoming that person’s Free will, and

    • Results in Inequity

  • Proof—circumstantial evidence, with courts considering

    • Vulnerability, influencer’s authority, actions of the influencer

Presumption

• Fraud or undue influence presumed if the instrument makes a transfer to:

  • The person who drafted it

  • A care custodian

  • A person in a fiduciary relationship with the transferor who

    transcribed the instrument or

  • A cohabitant or employee of any of the above three

  • Exceptions

    • If beneficiary is a blood relative or cohabitant, OR

    • Transfer valued at less than 5k, OR

    • Instrument reviewed independently by an attorney

• Presumption rebuttable with “clear and convincing evidence”

Conflict of laws—will must comply with:

• Law of place where testator domiciled at the time of execution

• Law of place where testator domiciled at the time of death

• Law of place where will was executed

Integration and incorporation by reference

• Papers are integrated if they were present at the time the will was executed and testator intended them to be integrated

• Writings outside of the will incorporated by reference if they existed at the time the will was executed, will manifests intent to incorporate, and will describes writings in enough detail to identify them

  • If a writing cannot be incorporated by reference but disposes of limited personal tangible property it will be admitted provided:

    • Referred to in the will

    • Dated and in testator’s handwriting

    • Describes items and beneficiaries with reasonable certainty

    • No one item exceeds 5k and the aggregate does not exceed 25k

Acts of independent legal significance

• Wills can dispose of property by reference to acts and events that have independent legal significance apart from their effect in the will

Codicil

• This is an amendment to an existing will made by testator to change, explain, or republish his will

• It has the effect of republishing the will as of the date of the codicil

• Same requirements as will or holographic will

• Revoking a codicil leaves the will in place, but revoking the will revokes both the will and the codicil

Pour-over wills

• A will that identifies a trust created by the testator into which he can “pour over” his probate assets and thus avoid going through probate if the assets are less than 100k

• Requirements

  • Trust is identified in the will

  • Terms of trust are set forth somewhere besides a will

  • Trust was executed at the same time or before the will

Revocation

Standard revocations

• By physical act

  • If the will was executed in duplicate, revoking one revokes the rest

  • Crossing out a beneficiary means those assets go to the residue rather than to the remaining beneficiary

• By subsequent will

  • Either express revocation of whole or part of prior will or implied revocation of whole or part through inconsistency

• By operation of law

  • To accommodate an omitted spouse, child, etc.

    • Married after will executed, unless intentionally omitted or otherwise provided for outside of the will

    • Born or adopted after will executed, unless intentionally omitted or otherwise provided for outside of the will OR decedent has one or more children and devises substantially all of his estate to the other parent of the omitted child

Dependent relative revocation

• If testator revokes first will in mistaken belief that a substantially similar second will or codicil exists—but it doesn’t—and would not have revoked first will but for the mistaken belief, courts will allow first will to operate

• Note

  • Applies only to the most recently revoked instrument

  • If second will invalid due to fraud, duress, etc. than revocation was never valid so DRR inapplicable

Revival

• Will can be revived after they’re revoked by a showing of intent to revive

Distributions

Types of gifts

• Specific gifts—a specific, identifiable piece of property

• General gifts—from general assets

• Demonstrative—general gift from a specified property or fund

• Residuary—everything that remains after other gifts and debts and taxes are satisfied

Ademption

• Threshold: does not apply to general or demonstrative gifts

• General case: beneficiary gets nothing

• Special rules for securities

  • If the will says, “MY 200 shares,” then they are adeemed

  • If the will says, “200 shares,” it is read to convey a general gift and then B is entitled to the value of 200 shares

Abatement—when gifts are reduced to pay debts and legacies. Order is:

• Property not disposed of by the will

• Residuary gifts

• General gifts to nonrelatives

• General gifts to relatives

• Specific gifts to nonrelatives

• Specific gifts to relatives

Exoneration

• Note that you can’t use specific gift to exonerate another one

Anti-lapse

• Threshold requirement: the beneficiary is kindred to the testator or kindred of a surviving, deceased, or former spouse or domestic partner of the testator

• Rule: when B predeceases T, B’s issue stands in his place

  • Issue includes all lineal descendants, not just children

• If simultaneous death, presumed B tied first, and then apply anti-lapse

Survivor rights

• If T attempts to devise all of the community property, then he gives his spouse the following choice: take what you get in the will, and give up your right to the community property; or claim your one-half interest in the community property

Bars to succession

• No contest clauses are valid—B penalized if he contests the instrument

Intestate distributions

120-hour rule:

• B must survive T by 120 hours, or deemed to predecease, unless application of rules results in escheat

Standard rules:

• CP goes to spouse

• SP goes to souse unless there is surviving issue, parent, siblings, or issue of siblings. If T leaves spouse and:

  • One child, or parents, or their issue: surviving spouse takes one-half of the SP

  • More than one child, or their issue: surviving spouse takes one-third of the SP

If no spouse:

• The order is:

  • Issue

  • Parents

  • Issue of parents

  • Grandparents

  • Issue of grandparents

  • Issue of predeceased spouse

  • Next of kin

  • Parents of predeceased spouse

  • Issue of parents of predeceased

  • To the state

Advancement:

• If T gave B property during lifetime, that property is treated as advancement against B’s interest only if T declared so in writing

Intestate distributions—representation distributions

• Per capita

  • Distribute proportionally at level 1, then pool and distribute proportionally at level 2, etc.

• Per stirpes / per capita with representation

  • Distribute proportionally at level 1; any undistributed assets stay in their lane and get distributed proportionally underneath their level 1 sources

• Strict per stirpes

  • Different variant, probably not important….

Special cases

• Adoption severs parent-child relationship unless adopted child and natural parent lived together at any point in time as parent and child

• Parent and step/foster children have parent-child relationship only if

  • Relationship began during child’s minority

  • Continued throughout lifetime of parties

  • A legal barrier prevented adoption