Formal Will - A lawful Will requires
- A writing:
- Signed by a testator with capacity (at least 18 and of sound mind);
- Present testamentary intent;
- The signing was witnessed by 2 disinterested individuals present at the same time of settlor’s signature;
- Witnessed during the testator’s lifetime;
- And understanding they signed the testator’s Will.
Conflict of law
A Will is valid in California when it was executed in conformity with:
1. CA law
2. Law of the place where it was created; or
3. Law of the state where the Testator was domiciled at the time of execution, or death.
Testamentary capacity
A testator must be
1. At least 18 years old;
2. They must have testamentary intent to create a Will;
3. They must understand the type and amount of property that they own (their bounty); and
4. They must understand to whom they are gifting their assets.
Lack of capacity
When a testator is found to lack capacity, their entire Will is invalid, resulting in intestate succession. Capacity is evaluated at the time of execution.
Testator gift of community and separate property
A testator may only give his share of the community property, as well as any separate property they own.
Will substantial compliance doctrine
A Will that does not meet the letter of the law may still be determined satisfactory if by clear and convincing evidence it can be established that the testator did in fact intend to leave this document as their formal Will.
Disinterested Witnesses
A Will it’s only valid if it is signed by the testator in the presence of two disinterested witnesses. Any such gift to an interested witness is presumed invalid - a witness will only take their Interstate share unless they can rebut this presumption.
Holographic Will or codicil
A holographic Will is one which is not formally witnessed but holds a measure of authenticity because the material provisions are written in the testator’s handwriting. Here, a testator with capacity must intend the document to be a Will, handwrite the material provisions and sign the document.
Incorporation by reference
Any separate document may be incorporated into a Will by reference if:
1. The document is in existence at the date of the Will;
2. There is intent to incorporate these documents;
3. They are described in the Will; and
4. Authenticated to be the document described.
Acts of independent significance
Blanks in a WIll can be filled in with beneficiaries or property by referring to acts or documents executed during a testator’s lifetime for nontestamentary motives.
Ambiguities
California allows extrinsic evidence to resolve patent (apparent on face) and latent (not apparent on face) ambiguities in a Will.
Pour-over Will
A valid Will which pours over the estate of the decedent upon his death into a trust is a pour over Will. Here, the trust must have been in existence at the time the pour over Will was executed.
Conditional Will
A conditional will takes effect only if the stated condition occurs (e.g., if I die on this trip), and is invalid if the condition does not happen.
Undue influence
- Prima facie - Exists when the testator is susceptible to undue influence, there is an opportunity for the wrongdoer to influence them, the wrongdoer forces, threats or actively influences the testator, and the result of the Will was unnatural (the gifts were given in an unreasonable manner).
- Presumption of undue influence - Requires a confidential relationship, there was an active participation in the drafting of the Will, and there was an unnatural result.
- California statutory undue influence - Occurs if the testator makes a donative transfer to either:
a. The person who drafted the will;
b. A caretaker custodian of a testator who is a “dependent adult”;
c. A person in a fiduciary relationship with the testator;
d. A person who is a spouse, domestic partner, employee, or is related by blood to a person in one of the previous 3 circumstances; or
e. A partner, shareholder, or employee of the law firm in which a person who drafted the Will or one in a fiduciary relationship with the testator has an ownership interest. - California presumption of undue influence - If the beneficiary is also a witness, and there are not at least 2 other disinterested witnesses, undue influence will be presumed.
Modification by Codicil
A codicil is an instrument made after a Will is executed that modifies, amends, or revokes a Will. A codicil must satisfy the same formalities as a Will. Execution of a codicil republishes the Will, meaning courts will consider the original Will to have been executed on the same date as the codicil.
Revocation by subsequent Will or Codicil
Revocation of a formal Will can be done by executing a subsequent valid Will or codicil. A Will can also be revoked by a physical act, such as burning or tearing. Duplicate copies of that Will are also considered destroyed when the testator destroys one copy.
Revocation by divorce
A divorce renders all gifts to previous spouses as revoked.
Interlineation
Occurs when a testator attempts to modify a gift in his Will by writing over the devise and attempting a modification. This change requires to be in the testator’s own handwriting and signed. Generally, a devise cannot be increased, and an attempt to decrease will result in an interpretation by the court that the gift is void.
Will Revival
A previously revoked will may be revived if it is evident from the testator’s contemporaneous or subsequent declarations that the testator intends the previous Will to take effect as executed.
Dependent relative revocation
A valid Will can be revived if the testator has a valid Will, attempts to revoke the Will with a new instrument, but for some reason, the second Will fails in validity. The testator would not have revoked their first Will except for their mistaken belief that their second Will would have been valid.
Widow election
When a spouse dies and leaves community property to another, the surviving spouse can elect to take her share of the community property or her devise under the Will. (A widow has to select, likely to choose whichever leaves her more - community property rights or the Will).
Omitted child
A child born after and thus not listed in the Will is entitled to an intestate share, unless: 1. Provided for outside the Will; 2. The decedent left the estate to the parent of other children; or The decedent purposefully left the child out of the Will.
Pretermitted child
A child unintentionally omitted from the Will.
Living child
Upon a testator’s death, if the testator failed to provide for a living child solely because the decedent believed the child to be dead or was unaware of the child, the child receives an intestate share.
