Wills

Testamentary capacity requirements:

At time of execution, T must:

1. be at least 18
2. understand extent of her property
3. know the objects of her bounty (family and other interested parties)
4. know the nature of her act (signing a will)

When is T suffering from an insane delusion?

If at time of execution:

1. T had a false belief that was the product of a sick mind
2. there is not a scintilla of evidence to support the belief
3. delusion must have affected T's will

Consequences of finding insane delusion?

That part affected by delusion is invalid and goes to residuary estate (or if none, then by intestate)

Types of Fraud and their consequences:
(representation of a false material fact for the purpose and actual occurrence of inducing an action

1. In the execution: forging someone's signature to a will, or having T sign a will when she thinks it is something else (T never meant to make a will)

> Entire will invalid, goes intestate or to a prior will

2. In the inducement: T meant for a will, but contents affected by misrepresentation

> Only affected part of will is invalid. Property goes by residuary clause and then intestate, but if wrongdoer is unjustly enriched, the will is probated to its terms and wrongdoer is trustee of property and must transfer to an intended beneficiary (ct determines)

3. In preventing T from revoking will

>bc fraud, no revocation. Same as above, probate will to its terms and wrongdoer is trustee of property

Undue Influence, 3 ways to establish and their elements

1. Prima facie case:
-Susceptibility
-Opportunity
-Active participation
-Unnatural result

2. Presumption:
-Confidential relationship b/w T&wrongdoer
-Active participation
-Unnatural result
-Wrongdoer benefits

3. Statutory

6 Types of mistake: (Can Each Idol Dance & Sing Crazily?)

1. in content
2. in execution
3. in inducement
4. in description
5. in validity of subsequent instrument (see DRR)
6. regarding living children (accidental omission)

Components of a will:

1. Integration of papers in will
2. Incorporation by reference of writings if not integrated
3. Acts of independent significance
4. Pour over wills

2 ways subsequent instrument revoke a will:

1. express revocation: subsequent revocation says so
2. implied revocation: subsequence instrument totally disposes of T's estate

Two ways a will revoked by a subsequent instrument is REVIVED:

1. T manifests intent to revive Will 1 by an unambiguous statement at time the subsequent instrument is revoked

2. If subsequent instrument revoked by codicil, W1 not revived unless it appears from terms of codicil that W1 should be revived

2 issues to consider with codicils:

1. Republication of older will.
-not automatic, must be expressly stated in codicil

2. Revocation of codicils
- Revocation of a codicil > rebuttable presumption that codicil revoked only

-Revocation of a will > rebuttable presumption that will and condicil both revoked

Conflict of laws:

Out of state will valid if executed according to:

-CA law, or
-law where will executed
-law of T's domicile at T's death
-where T was a national

Revocation by operation of law:

1. Pretermitted child (abates balance of gifts)
2. Omitted spouse
3. Omitted domestic partner
4. Final dissolution of marriage

Pretermitted child pre/post 1998

Pre-1998:
-Child receives intestate share, equal to what he would've received if T died intestate. Proceeds from abatement of other gifts
-UNLESS T intended to leave child out and intention is clear in will, if T devised substantially all of his estate to the parent of omitted child, or if T provided for child by transfer outside of will with intention that it act in lieu of testamentary provision

Post-1998:
-Operates same as above but includes revocable trusts established by T during lifetime

Omitted spouse pre/post 1998

Pre-1998:
-Takes statutory share of T's estate, which is 1/2 CP and Q-CP (leaving her with all of it), amount of T's SP equal to what she would've received in intestate (not to exceed 1/2 of SP)

-UNLESS T intended to leave omitted spouse out and intention is clear, if T provided for spouse outside the will with intention that it act in lieu of testamentary provision, or if omitted spouse signed a waiver

Post-1998:
Acts similar to pre-1998 but includes revocable trust

Effect of dissolution of marriage:

Revokes devise by operation of law. If they remarry and will is unchanged, the devise is reinstated