Student Outlines
Wills Outline
Issue: Will Requirements
Rule: §6110 Requires that a will (1) be signed by the testator or another at the direction of the testator, (2) witnesses by at least two subscribing witnesses and (3) intended to be a will (animus testandi).
Issue: Holographic Wills
Rule: A holographic will is an unwitnessed will that is written in the handwriting of the testator. Probate Code §6111 requires only that the signature and material provisions of a holographic will be in the handwriting of the testator.
- Extrinsic evidence is admissible to determine whether or not a writing constitutes a holographic will.
- It is not necessary that the testator's true or legal name be signed to the will. A will signed with the testator's nickname or even an affectionate family name will satisfy the statutory requirement of a signature.
- The signature can appear anywhere in the document.
- If the signature is placed at the beginning or in the body of the instrument, the court will determine if the decedent's name was placed in that location with the intent of executing the instrument.
When it appears that the will was intended to be a complete testamentary instrument, the signature is presumed to be a token of execution wherever its location. If however, the instrument terminates abruptly near the middle of the last page, and it appears that the decedent intended to add more, the instrument will not be admitted to probate just because the decedent's name appears in the opening clause.
Issue: Dependent Relative Revocation
Rule: Under DRR, the testator is presumed to have intended to revoke an earlier will on the condition that a later will was valid (even if the later will does not expressly state this condition) if the testator's revocation of the earlier will was based on the mistaken belief that the later will was valid.
Issue: Revocation
Rule: A will can be revoked by a (1) physical act, (2) a subsequent instrument, and (3) by operation of law.
Issue: Revocation by Subsequent Instrument
Rule: Under §6120 (a), a subsequent valid will can totally revoke a prior will if: (1) a clause in the subsequent will expressly revokes the prior will, or (2) the provisions of the subsequent will are entirely inconsistent with the terms of the prior will.
Issue: Revocation by a Physical Act
Rule: Under §6120 (b), a will can be destroyed by a physical act, with the intent and for the purpose of revoking it, by either (1) the testator, or (2) another person in the testator's presence and by the testator's direction.
Issue: Presumption of Revocation by Destruction
Rule: Under §6124, the testator will be presumed to have destroyed the will with the intent to revoke it if (1) the will was last in the testator's possession, (2) the testator was competent until death, and (3) neither the will nor a duplicate original of the will can be found after the testator's death.
Issue: Methods of Partial Revocation
Rule: Under §6120, a will can be partially revoked in four ways: (1) By express provision in a subsequent testamentary instrument; (2) by the wills partial inconsistency with a testamentary instrument; (3) by cancellation (i.e., crossing out) of part of the will; and (4) By interlineation (i.e., writing) on the face of the will.
Issue: Revival of Revoked Wills
Rule: Under §6123 (a) and (b), when a will is revoked by a subsequent will that is later revoked by a physical act, the original will is not thereby revived unless it is clear from the circumstances of the revocation or from the testator's contemporaneous or later declarations that the testator intended to revive the original will.
Issue: Will Contract
Rule: Will contracts generally take one of two forms: (1) a contract between parties not to revoke their existing wills; or (2) a contract between parties to dispose of their property in a certain manner. A will contract will not prevent a will from being ambulatory. However, failure to abide by the provisions of the contract may lead to an action based upon contract.
Issue: Doctrine of Facts of Independent Significance
Rule: Under the doctrine of facts of independent significance in §6131, a testator may draft a will that disposes of property by reference to a particular act or event if the act or event has significance apart from its effect on the disposition made by the will. A disposition is invalid when the facts from which it can be ascertained have no significance apart from the disposition in the will.
Example: Devises to persons named in an unattested memorandum not incorporated in the will by reference are invalid on the ground that the memorandum has no significance apart from the will. For this reason, a devise of personal property to "those persons designated in a memorandum which I shall prepare and leave in my safe-deposit box" would not be valid.
Issue: Doctrine of Incorporation by Reference
Rule: Under §6130, a writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. Any attempt to incorporate a document that does not exist when the will is executed is ineffective.
Issue: Letters of Instruction
Rule: The chief question raised by a letter of instruction is whether it expresses testamentary intent. If the letter expresses testamentary intent, it must be treated as a holographic will or codicil (§6111) even if the testator refers to it as a letter rather than as a will.
Issue: Codicils
Rule: A codicil is a testamentary document that supplements, amends, qualifies, or republishes a prior testamentary document. A codicil must be executed with the same formalities as a will and must be made with testamentary intent. A writing that refers to a will, but show no intent to change it, lacks testamentary intent and is not a codicil. A valid codicil is part of the will to which it refers, and both instruments are construed together as one.
Issue: Mental Incapacity
Rule: Under §6100.5 (a), a person is not mentally competent to make a will if, at the time the will is executed, the testator does not have sufficient mental capacity to (1) understand the nature of the testamentary act, (2) understand and recollect the nature and situation of his or her property, or (3) remember and understand his or her relations to his or her living descendants, spouse, parents, and those whose interests are affected by the will, and in some circumstances (4) the integration of the above factors as they relate to one another.
- Incompetence is determined at the time the will is executed.
- In California, there is a presumption of competency.
- Competency is judged under a preponderance of the evidence standard
Sub Issue: Mental Delusions/Hallucinations
Rule: Under §6100.5 (a)(2), a person is not mentally competent to make a will if, at the time the will is executed the testator suffers from a mental disorder involving delusions or hallucinations that cause the testator to choose a disposition for his or her property that he or she would not have chosen but for the delusions or hallucinations.
- The capacity required to execute a will is considerably less than the capacity required to execute a contract.
Issue: Undue Influence
Rule: The following set of facts will give rise to a presumption of undue influence: (1) confidential relationship or (2) suspicious circumstances. If a confidential relationship does not exist, then the courts will look at the (1) susceptibility of influence, (2) opportunity to influence, (3) disposition to influence (requires wrongdoing) and (4) a coveted result (a result of the influence).
- A family relationship alone will not create a confidential relationship.
Issue: Joint Tenancy
Rule: Joint tenancy is a form of co-ownership in which two or more persons own property in equal undivided interests. The salient feature of a joint tenancy is the right of survivorship in the remaining joint tenants. A deceased joint tenant's interest vests in the surviving joint tenant or tenants at the moment of death. Joint tenancy passes outside of probate. Any will provision attempting to dispose of property contrary to the rights of a surviving tenant or tenants will be ineffective.
Issue: Multiple-Party Accounts
Rule: Under §5132, funds deposited in a multiple party account are not subject to disposition by will. Rather, on the death of one of the parties to the account, the funds will be paid to the person designated to receive the funds on the signature card or other account document.
Issue: Pay on Death Account
Rule: Under §5131, a POD account is an account payable on request to one person during that person's lifetime and, on that person's death, to one or more POD payees. POD accounts pass outside of probate.
Issue: Joint Account
Rule: Under §5140, a joint account is an account payable on request to one or more of two or more parties. Joint accounts pass outside of probate.
Issue: Property Subject to Nonprobate Transfers
Rule: Under §5000, many valuable property rights are subject to transfer on the death of their owners under contract provisions and outside of probate.
- Insurance policies
- Employment contracts
- Bonds
- Mortgages
- Promissory notes
- Account agreements
- Custodial agreements
- Deposit agreements
- Pension plans
- Individual retirement plans
- Trusts
- Deeds of gift
- Marital property agreements
- Or other written instruments of a similar nature.
Issue: Community Property
Rule: While both spouses are living, each is vested with an undivided one-half interest in all community property. Under §100, upon the death of either, one half of the community property belongs to the surviving spouse and the other half belongs to the deceased spouse. The half that belongs to the deceased spouse may by disposed of under the deceased spouse's will.
Issue: Ademption
Rule: If the testator makes a specific gift of property that does not exist or is not in the testator's estate at the time of the testator's death, the gift may be considered adeemed (extinguished). This may occur when property has been exchanged, sold, lost, destroyed, or given away during the testator's lifetime. When ademption occurs, the personal representative may not substitute other assets in place of the specific devise.
Issue: Securities
Rule: The issue of ademption of a gift of securities often turns on a determination of whether the testator intended a specific gift of certain securities or a general gift of the equivalent value of the securities. Look to the language to determine the gift.
Issue: Anti-Lapse
Rule: §21110 provides that a gift should be distributed to the issue of the deceased beneficiary when the beneficiary fails to survive the testator.
Issue: Conditional Gifts
Rule: Although testamentary gifts are presumed to vest at the time of the testator's death, the testator may make a disposition conditioned on the occurrence or nonoccurrence of some act or event. Gifts may be conditional as long as the condition does not violate the law or public policy (§6105).
Issue: Class gifts
Rule: As a general rule, when an outright gift is made to a class, the members of the class are determined on the date of the testator's death. The class members are all persons answering the description of the class, including persons conceived before, but born after, the testator's death §21113 (c).
Issue: Conditional Wills
Rule: Under §6105, a will that is expressly made conditional by its own terms must be admitted to probate or rejected in conformity with the condition.
Issue: Property held in Tenancy in Common
Rule: When persons own property as tenants in common, each has an interest in the property, and there is no right of survivorship. When one tenant in common dies, his or her interest in the property does not automatically pass to the survivor or survivors but is subject to disposition under his or her will or, if there is no will, under the laws of intestate succession.
Issue: Specific Gift
Rule: Under §21117, a specific gift is a gift of specifically identifiable property. A devise is specific if the testator intends to give a specific thing and that thing alone.
Issue: Valid Inter Vivos Gift
Rule: In order for there to be a valid gift, there must be intent, delivery and acceptance.
Issue: POD Accounts
Rule: POD accounts are payable upon death and owned by the depositor during life. These accounts are valid will substitutes and pass outside of probate.
Issue: Probating a Destroyed Will
Rule: A destroyed will may be probated if the proponent can show the following: (1) that the testator made a valid will, (2) the contents of the will and, (3) that the testator did not revoke the will prior to his death. A will is presumed to be revoked if found destroyed.
Issue: Gift Causa Mortis
Rule: For a valid gift causa mortis (in anticipation of death), the following must be satisfied: (1) the gift was made in anticipation of impending death, (2) the gift was delivered, (3) the donee accepted the gift, and (4) the donor did not recover.
Issue: Standing
Rule: Only an interested party can contest a will. An interested party is one who will be effected by the disposition of the will.
Issue: No Contest Clause
Rule: If any of the takers of a will contest the will, then they may be disqualified from receiving anything. However, since the person contesting the will is receiving very little, they may choose to contest, since they have little to lose.
Issue: Mortmain Statutes
Rule: These statutes may limit a testator's disposition to a charity if the charity was recently added to the will.
