Will & Exec. of Will

Will

  1. Gen'ly No Restrictions 2 Testamentary Pwrs Except
    1. Substantively
      1. Doc. of waste
        1. Limits testator (T) from destroying asset after death but can before
        2. Somebody w/prop. int. has rt. 2 protest
      2. No Intentional Disinheritance of SS (see protecting SS)
      3. No Disinheritance of Heirs by Fiat / Arb. Order
        1. T can only disinherit by validly disposing prop. 2 another
        2. UPC changes rule 2 give T what he wanted
    2. Proced'ly
      1. Can disinherit if follow cert. proced.
  2. Protecting SS
    1. Rt. of Election
      1. Trad'al C/L & w/o comm. prop.
        1. SS can choose btwn decedent's prov. & stt'ry rt. of election against will
        2. SS can get trad'al 1/3 sh. of probate estate
      2. Modern reform of 1960
        1. Rt of election against augmented estate which incl's nonprobate prop. that decedent had control
      3. UPC 1990
        1. Consid. all prop. of both spouse @ death
        2. If SS had transf. during life & death 1/2 / more, no rt. of election
        3. If not, SS has 50% rt. of election in longterm marriage
        4. Judge has no discretion
    2. Comm. Prop.
      1. Sep. prop. § 770
        1. Acq'ed before marriage +
        2. After marriage by donative transf. & sep. prop's income
        3. All subj. 2 disposition @ death
      2. Comm. prop. § 760
        1. All prop. acq'ed / by labor during marriage except donation
        2. For. comm. prop. becomes CA comm. prop.
        3. SS has 1/2 before death § 100 & T can dispose other 1/2
        4. Can transmute sep. prop. into comm. prop. in writing
    3. Quasi-Comm. Prop. (QCP) § 101 & 66
      1. What would've been comm. prop. if H & W domiciled in CA is dist'ed as if were comm. prop. @ death
      2. Not incl. for. pension & real estate
    4. Prenuptial Agmt
      1. K's before marriage 2 give less than intended default min.
      2. Can ez'ly waive rts
      3. Gen'ly enforceable
      4. Enforcing prenupt agmt
        1. No discl. req'ed unless there's actual fraud in old C/L
        2. New C/L
          1. Full discl / actual / constructive knowledge of spouse's wealth
          2. Fair & rsbl prov.
          3. Actual waiver
        3. Guaranteed 2 work if
          1. 2 atty's +
          2. Full discl. 4 fair & rsbl prov.
      5. Ez 2 give up rts in CA
        1. Premarital K's not enforceable if prove § 1615
          1. Party not exec. agmt vol'ly /
          2. Agmt was unconsc. b/c
            1. No fair & rsbl discl. of prop. / fin'al oblgn
            2. No vol. & exp. waiver in writing
            3. Unconsc. dec'ed by ct as matter of law
        2. Could also satisfy premarital K by § 140-47
          1. Can waive all rts by spouse § 141, 145
          2. Waiver is presumptively valid § 142
            1. In writing + signed by SS
            2. Can have same defenses 4 enforcing K except lack of consid. / minor w/intent 2 marry
          3. Waiver enforceable as of rt. unless proves § 143
            1. No fair & rsbl discl of prop. / fin'al oblgn unless waived discl. after advice from indep. atty /
            2. SS not rep'ed by indep. atty @ signing of waiver
  3. Unintentional Disinheritance / Forgotten
    1. Sit's Where Will Before Marriage & Not Changed After
      1. Intent effectuated 2 help T 2 do what he forgot
      2. By § 6560 SS gets T's 1/2 of comm. prop. & QCP +
      3. Lesser of SS's intestate sh. of sep. prop. / 1/2 of sep. prop.
    2. UPC 1990 & 2nd Marriages
      1. SS / W2 only gets sh. of what T not leave ch. of prior marriage / intestate sh.
    3. Evid. of Intent
      1. T's failure 2 prov. in will must B intentional & appears from will § 6561)a
        1. Intention & mention test 2 see if SS intentionally left out of will
      2. Oral intention gen'ly not adm.
        1. Can't compete w/will
        2. Allow when oral evid. 4 gift / transfer outside of will
    4. Disinheriting Ch.
      1. Can't disinherit in LA but can in other states
      2. Some proced. rt. in CA § 6570 & 6571
        1. Ch born / adopted after exec. of will R forgotten ch.
        2. Forgotten ch. can get intestate sh. of sep. prop.

Exec. of Will

  1. Def. of Exec.
    1. 2 Perf. Formalities Nec. 2 Give Validity
      1. Only admit validly exec'ed will into probate
      2. If not meet all exec. / formalities, no will
    2. Trend Toward Less Formalities
      1. UPC 2-503 gives ct dispensing pwr 2 excuse harmless error in complying w/Wills Act if clear & convincing evid. T intended doc. 2 B will
      2. Harmless error is broader stand. than subst'l compliance
  2. Types
    1. Formal / W'ed / Ord. / Attested Will § 6110
      1. Recog'ed everywhere
      2. Must meet reqts of Wills Act
        1. Controlling stt. w/min. formal reqt 4 valid will
        2. Broad in CA 2 incr. likelihood of adm. will 2 probate § 6113
          1. CA
          2. Law of state of exec.
          3. Law of state of T's domicile, nationality / abode @ exec. / death
        3. Policy 2 have Wills Act
          1. Transf. really happened & no fraud
          2. Protect T from undue influence
          3. Protect from suppression of will
          4. Ritual makes people more cautious & create event 4 evid.
          5. Channeling people 2 atty & incr. jud'al eff.
      3. Specimen will
        1. Intro. will & exp.'ly revoke last will
        2. Devises
          1. Specif. 4 specif. descriptive obj. / spec. things
          2. Gen. devise
          3. Resid. devise 4 all else left
        3. Testimonium cl.
          1. After last article, will signed by T on cert. date @ cert. place
        4. Attestation cl.
          1. Not req'ed but only need actual attestation & W sig.
          2. After testimonium cl. & T's sig. line, cl. about W'ing
          3. Contemp. stmt describing what U attested 2
        5. Self proving affidavit
          1. Not req'ed
          2. Memorial of testi. & has nothing 2 do w/will
          3. CA recog. combo of attestation & self proving affidavit so no need 4 notary
      4. Integ. / phys'al construction of will
        1. Pgs present @ exec. w/intent 2 incl. in will
        2. Attach pgs giving presumption of presence & intent of integ.
          1. Ribbon & seal by sig.
          2. Ribbets
          3. Staples
          4. No paper clips
        3. Should # pgs & articles
        4. Never end sentence on bottom of pg.
        5. Never have only testimonium & attestation cl. @ last pg.
      5. Reqts
        1. Must B written will § 6110)a
          1. Any lang. inscribed w/any device on any substance resulting in readable record
          2. Could B typed / handwritten
        2. T's Sig. Req'ed § 6110)b
          1. T can sign by proxy
            1. Proxy must B dir'ed by T 2 sign
            2. Proxy must B w/in T's presence
          2. T can sign
            1. Own name
            2. Mark
            3. Nickname
            4. Someone else's name & adopt as own
          3. Sign @ end
            1. The end is logical end, not phys'al end
            2. CA not req. sig. @ end § 6110
            3. But if sign @ end, presumption 2 give intent
            4. If not @ end, rebuttable presumption words after sig. weren't part of will
        3. W need 2 attest § 6110
          1. Will W'ed & signed by @ least 2 people
          2. W's must have been present @ same X
            1. Phys'al presence test
              1. Formal version where must have been seen
              2. Less formal / seeable where presume presence if doer & watcher in same rm
            2. Consc. presence test
              1. W /in range of sense / if audible
              2. Min. view but restatement adopted this
          3. Must understand it's T's will
            1. Could pub.
            2. Ok if atty told W § 6110)c)2
            3. W saw "will" on top of doc. § 6110)c)2
            4. No need 2 know the content of the will
          4. W must watch T sign / T acknowledge sig.
          5. Not have 2 remember wills
        4. Qualif. & # of W's § 6112
          1. Must have 2 & anything beyond is supernumerary
          2. W must B competent 2 testify about material facts of exec.
          3. Gen'ly want disint'ed young W's who can B found
          4. Int'ed W is somebody who takes prop. under will § 6112
          5. Int'ed W's sig. not invalidate will & can still testify § 6112)b
          6. But if int'ed W, then presume W procured devise by duress, menace, fraud / undue influence so void the gift § 6112)c
          7. UPC allows int'ed / disint'ed W's
      6. Seq. of signing
        1. T then W but if W sign 1st, ok in most jxn if part of cont. trxn
      7. Spec. sit's
        1. Dr's doing durable pwr of atty
        2. Human sense incl. other than signs
        3. Will 4 blind read out loud
        4. No blind W's
        5. Need 2 change attestation cl. & self proving affidavit 4 deaf, illit., etc. T's
      8. Not req'ed
        1. Dates
        2. Seal
        3. Deliv.
        4. Consid.
      9. Safekeeping Will
        1. Safe deposit box of clients but prob's in states that seal @ death (not CA)
        2. Exec'or esp. if bank / prof'l
        3. Probate ct but can create prob's
        4. Atty's safe deposit box
        5. Not 2 T
      10. Could use extrinsic evid. 2 see if it's will / will's meaning § 6111.5
    2. Holographic / Olographic / Handwritten / UnW'ed § 6111
      1. Valid in most jxn's & in CA
      2. Substitution of formalities 2 carry out T's intent
      3. Reqts § 6111)a
        1. Sig. & material prov. must B in T's handwriting
        2. Could have comm'l kit wills where T handwrites material prov.
      4. Not need dates but prob's of inconsistency if more than 1 will
        1. If holog. will w/o date of exec. results in doubt of which prov. controls, holog. will invalid 2 extent of inconsistency unless X of exec. is est'ed 2 B after date of other will's exec.
      5. Could use extrinsic evid. 2 see if it's will / will's meaning § 6111.5
        1. If comm'ly printed material exp's testamentary intent, adm. as extrinsic evid. § 6111)c
      6. Failed attempt @ holog. will could B
        1. Fail as will
        2. Probate as ord. attested will by
          1. Ranney's C/L pwr of subst'l compliance
          2. UPC 2-503 harmless error / subst'l compliance
        3. Succeed as holog.
    3. Nuncupative
      1. Oral will not recog'ed in CA § 6110
      2. If recog. in jxn, severely limited

This material is copyrighted by the author. Use of the material for profit is expressly prohibited without the written permission from the author.

Go Back to Law School Notes

Ms. Haeji Hong

December 17, 1997