Wills short rules.txt

• formal will = typed will
• A formal will must be:
• 1) signed by the testator
• 2) signed by 2 witnesses
• 3) each of whom witnesses the testator's signing of the will.
• 4) Both witnesses must understand that the document they signed was the testator's will.

A witness to the will who is also a devisee under the will is an interested witness.

• CL: an interested witness is deemed incompetent, and the will is held invalid
• CA: if one of the two witnesses is interested, the will is still valid. but there is a rebuttable presumption that the witness procured the devise by duress, fraud, or undue influence.
• if the interested witness cannot rebut, then the provision in the will for the interested witness is purged

A specific devise is a gift of a particular item of property distinct from all other objects in the testator's estate.

A general devise is a gift of general economic benefit.

• CL: Under CL, a devise that dies after T executes his will, but before the gift becomes effective, the gift lapses (fails).
• When a specific gift lapses, it falls into the residuary estate.
• CA: CA has enacted anti-lapse statutes that provide a substitute beneficiary to avoid this harsh result.
• CA anti-lapse statute applies if devisee who predeceased the testator was:
• 1) kindred of the testator, or
• 2) testator's spouse
• Under CA law, the substituted issue take the devise per capita with right of representation.

• When the will expresses a contrary intention or a substitute disposition.
• Under CA law, the requirement that a devisee survive the testator by 30 days clearly constitutes a contrary intention.

• The disposition of ___ depends on whether or not the document is probated as part of T's will.
• The question is whether an extrinsic document can be admissible for the will's composition.
• 1. Integration
• 2. Incorporation by Reference
• 3. Acts of Indepenent Significance
• 4. Codicil
• 5. Secret Trust

• This doctrine permits papers or writings that:
• 1) were present at the time of execution that
• 2) testator intended to constitute her will
• to be part of her will.

• A document may be incorporated by reference into the will so that it is considered part of the will.
• The document (or writing) must be:
• 1) clearly in existence at the time of execution
• 2) clearly ID'd in the will
• 3) T intended to incorporate the document into the will
• [if 1-2 is satisfied, 3 is implied]
• it is irrelevant if the document itself is not a valid will.

• This doctrine permits a court to fill in certain blanks in the testator's will with documents (or acts) effectuated during T's lifetime.
• The documents must have been effectuated for primarily nontestamentary motives.

• Codicil is a testamentary instrument executed subsequent to the execution of a will.
• A codicil is intended to modify, alter, or expand the will.
• To be valid, codicil must be executed with the same statutory formalities required for the execution of a will.

• A secret trust results when a gift is made in reliance upon the beneficiary's promise to hold the gift property in trust for another.
• To prevent the unjust enrichment of the named beneficiary, courts will allow the intended trust beneficiary to offer extrinsic evidence of the agreement.
• If the agreement is proved with clear & convincing evidence, a constructive trust is imposed on the named beneficiary.
• Named beneficiary = secret trustee
• Elements:
• 1) will makes a gift on its face to a A [secret trustee]
• 2) but the gift is given on the basis of an *oral promise* by A to use the property for the benefit of B

• If a gift in trust is made to an unnamed beneficiary, it is a semi-secret trust.
• A semi-secret trust is unenforceable becuase it does not comply with the statute of wills.
• Parol evidence is inadmissible for a semi-secret trust.

Depends on whether the court characterizes the devise as a secret or semi-secret trust. This affects the admissiblity of the oral testimony, proving the actual beneficiary and the intent by the testator to give to the actual beneficiary.

• When a specific gift is no longer owned by T at the time of death, the gift is adeemed, and the beneficiary is not entitled to the proceeds of the specific gift or any property in lieu of the gift.
• In some states, if there has been a complete extinction of the property, the intention of T is irrelevant, the gift is considered adeemed.
• In CA, however, ademption depends on T's intent to adeem at the time he disposes of specific property.

• 1. Physical act
• 2. Subsequent written instrument
• 3. Operation of Law

• 1. Will must be burned, torn, cancelled (lined out), destroyed, or obliterated (erased)
• 2. T must have simultaneous intent to revoke
• 3. Act must be done by T or someone in T's presence at his direction

• 1. Express - new will says "i revoke all old wills"
• 2. Implied - new will disposes of all of T's estate, leaving nothing for old will to act upon

Under CA law, if a codicil is revoked, it does not revoke the prior will. The prior will gets probated.

• CL: if a codicil (revoking a gift in a prior will) is revoked, the revocation of the codicil revives the original gift.
• CA: revival of the devise depends on T's intent. extrinsic evidence is admissible to prove T's intent to revive the devise in the will.