wills bar issue

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*Wills ISSUE only
1. Attested Will (5 Elements)- W, sign T, 2 W same time, during T life, W know it’s a will.
a. CA- clear and convincing standard (harmless error rule) ok if missing elements if
Clear and convincing evidence that T signed the will and he intended to make will
2. Interested Witnesses- beneficiary under will has presumption, need to rebutt
3. Conditional Wills – condition has to be satisfied for it to probate
4. Intent (capacity)- 4 elements: 18, extent property, bounty, nature of her act (making will)
a. Insane delusion- false belief; product of sick mind; no evi to support; affected will
5. Fraud- representation, material fact, knew false, purpose to induce/inaction, in fact induce
a. Fraud in execution- doc not will
b. Fraud in inducement- contents effected by misrep
6. Undue Influencea. Prima Facie (sus, opp, active par, unnatural result);
b. Common law (confidential relationship (attorney-client), active par, unnatural) –
in CA confidential rel when one person reposes trust in another (easy)
c. Statutory presumption of UI- (drafter, caregiver and their family) need to rebut.
7. Mistake in: content (need C&C to reform); execution; Description (Latent; patent; CA
allows Parol evidence for ambiguity).
8. DRR- Revocation by physical act or subsequent executed will= if mistaken, Ct ignores
revocation of will 1.
9. Omitted child- accidental omission b/c born/adopt after execution-takes by intestate SH
10. Component of will
a. Integration- intent (intended paper to be in will); presence (physically at time of
execution)
b. Incorporation by reference- document in existence when will executed, identified
in will & T intended to incorporate the doc into will.
c. Facts of independent significance- parol evidence allowed
d. Writing disposing of limited tangible personal property (referred in will, date/sign
by T, describes property, personal tangible property, worth not more than 5k)
e. Pour over wills- T devises his estate to the trustee of the ABC trust to be
administered pursuant to the terms of that trust. USE incorporation by reference;
independent significance, and Uniform Testamentary additions to Trust act
(UTATA)
11. Holographic wills- signed by T; material provision in T’s hand writing.
12. Codicils- a testamentary instrument which modifies, amends, or revokes the will.
13. Revocationa. Physical act- T’s intent and physical act by T (or in T’s presence and direction)
b. Subsequent instrument- express (will 2 revokes 1); implied (disposes all res)
c. By operation of law- dissolution of marriage or domestic relationship
d. By change in property holdings (ademption)- extinction (no more); satisfaction
(already given); advancements (already given)
14. Interlineations- if typed, cannot change with hand writing; if handwritten= ok to change
15. Omitted
a. Child- takes by intestate SH unless intentionally left out
b. Spouse- takes by intestate Share
c. Omitted domestic partner- same sex, or opposite sex 62 yrs of age and filed with
state.
16. Contracts to make a will or devise
17. Joint and Mutual wills- doesn’t create presumption of K not to revoke or make a will
18. Unworthy Heirs or Beneficiaries: killers
19. Intestate Successiona. CP all to surviving spouse or domestic partner
b. SP all if no issues, 1 = ½; 2= 1/3
20. Lapse & Anti-lapse= Applies when the predeceased bene is Kindred of T, in this case,
predeceased bene’s Kindred will take over (kindred stop in shoes of the kindred)
21. Simultaneous death – 120 hr if cant tell, T survives bene
22. Will substitute-gift causa mortis- a gift made in contemplation of imminent death-only
personal property allowed.
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