Execution of Wills Requirements?
(1) Testator with capacity;
(2) Present testamentary intent; and
(3) Valid compliance with applicable formalities
What are the requirements of capacity?
Reqs of capacity
• age = 18 years
• know nature and extent of property
• natural objects of bounty: spouse/domestic partner; issue; parents; and others whose interests affected by will
• nature of the testamentary act - the testator must know that he/she is executing a will; knowledge of legal technicalities not required
Defects in capacity
• insane delusion
• fraud
• undue influence
Effects of no capacity = entire will invalid
What is the effect of no capacity?
Entire will invalid
What are the will formalities?
(1) writing required
(2) signed by - signature are intent dispositive and can be anywhere on the document
(a) testator
(b) by another
- in testator’s presence; and
- at testator’s direction
(c) conservator
(3) simultaneous presence of 2 witnesses
(4) signed by witnesses within testator’s lifetime; and
(5) witnesses understand the significance of the testator’s act
What are the components of the will?
(1) Integration
(2) Incorporation by reference
(3) Acts of independent significance
(4) CA Probate Code § 6132
(5) Codicil
(6) Pour Over Will
What is integration?
= process of bringing together all separate papers into a single will
Elements
(1) intent by testator
- physical connection of papers (i.e. stapled together); or
- logical connection - natural flow of the ¶s and sentences from page to page;
AND
(2) paper actually present at time of execution
What is incorporation by reference?
- document/other writing
- documents in existence at time of execution
- documents clearly identifiable in the will; and
- intent by testator
• presumed by court if other elements satisfied
What are acts of independent significance?
- non-testamentary in nature - to be valid, the act must be something which ordinarily has some non-testamentary purpose
- past/future act
- test = does the act/document have sufficient significance apart from its effect on the will?
–> effect of yes = if beneficiary/property designations are identified by acts having independent motive/significant apart from the will, they will be upheld since the parole evidence is trustworth
CA Probate Code § 6132
Incorporation by reference & acts of independent significance
SCOPE:
- decedents dying on/after 1/1/2007
- determines whether writing will be admitted by: incorporation by reference; or acts of independent legal significance
ELEMENTS
(1) writing must be
- referred to in unrevoked will
- dated
- signed/handwritten by testator
(2) writing must describe items and beneficiaries w/ reasonable certainty;
(3) writing disposes of tangible personal property
- no cash
- no trade or business property
- limitation on value at testator’s death: $5k per item; AND $25k in aggregate
Last in time prevails
Codicil
Testamentary instruments that modifies, amends, or revokes pre-existing will
Holographic codicil
- all material provisions in testator’s handwriting; and
- signed by testator
Effect of codicil = republication of will
- pour over wills
- pretermission
Effect of Revocation
• revokes codicil = rebuttable presumption only codicil revoked
• revokes will = rebuttable presumption both codicil and will revoked
What is a holographic codicil?
Holographic codicil
- all material provisions in testator’s handwriting; and
- signed by testator
What is the effect of codicil?
Republication of will
- pour over wills
- pretermission
What is the effect of revocation of codicil
- revokes codicil = rebuttable presumption only codicil revoked
- revokes will = rebuttable presumption both codicil and will revoked
What is a Pour Over Will?
definition = provision in settlor’s will devisees part/all of estate to the trustee of an inter vivos trust created during settlor’s lifetime
Validated by
(1) incorporation by reference
- trust instrument in writing
- trust instrument in existence at time of will execution
- trust instrument clearly identifiable
- intent by testator
(2) acts of independent significance
(3) UTATA (Uniform Testamentary Additions to Trusts Act)
(4) CA Probate Code § 6132
What are Conditional Wills?
Wills that only go into effect when a certain act/condition happens
Court will only probate if condition has been satisfied
Form
- formal wills; or
- holographic wills
Execution of Holographic Wills
Formalities
(1) writing required
(2) material terms handwritten by testator
(3) signed by testator
Testamentary Intent
- extrinsic evidence admissible
- commercially printed form
Date not required - but watch out for inconsistent testamentary instruments or capacity issues
