WILLS SHORT OUTLINE/CHECKLIST

CHECKLIST

I. Execution of Wills (Is the Will Valid?)

a. Formally Attested Wills
b. Holographic Wills
c. Testamentary Capacity (Capacity, Insane Delusion, Fraud, Undue Influence)
d. Conflict of Laws

II. Revocation of Wills

a. By Subsequent Will
b. By Physical Act
c. By Operation of Law
d. DRR
e. Revival

III. Components of the Will

a. Integration
b. Republication by Codicil
c. Incorporation by Reference
d. Acts of Independent Significance
e. Writing Disposing of Limited Tangible Personal Property
f. Pour-Over Wills

IV. Interpretation of Wills & Distribution of Estate

a. Ambiguities
b. Classification of Gifts
c. Ademption
d. Abatement
e. Lapse/Anti-Lapse
f. Increase
g. Exoneration

V. Intestate Succession

VI. Bars to Succession

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I. Execution of Wills (Is the Will Valid?)

a. FORMAL (ATTESTED) WILLS
i. There are five elements for a valid formal (attested) will:
1. (1) must be in writing;
2. (2) must be signed by the testator, or by another in T’s presence by T’s direction, or by
conservator (anywhere on will);
3. (3) T must sign or acknowledge in the joint presence of at least TWO witnesses (the
witnesses either see T sign, or hear and know what is being done);
4. (4) the witnesses must sign the will during T’s lifetime (anywhere on will, don’t need to
sign at the same time or in the presence of T); and
5. (5) the witnesses must understand the instrument they signed is T’s will.
ii. HARMLESS ERROR Doctrine – “Clear and Convincing” Standard:
1. Even if the above witness requirements are not met, the court may still find the will to
be valid if the court finds by clear and convincing evidence that T intended the
document to be his will at the time it was executed.
iii. Interested Witness Presumption
1. A witness who is also a beneficiary under a will is presumed to have taken by fraud,
duress, or undue influence, unless there are two other disinterested witnesses. The
presumption is rebuttable, and if failure to rebut, witness does not take under the will
and instead only takes what he would have received through intestacy.

b. HOLOGRAPHIC WILLS
i. A holographic will is one that is handwritten and signed by the testator but has no witnesses.
ii. A holographic will is valid in California as long as the signature and material provisions are in
the testator’s own handwriting. The material provisions are typically the gifts made, and the
beneficiaries’ names.
1. Requires capacity and testamentary intent. A statement related to testamentary intent
can be in T’s handwriting, or part of a commercially printed form will.
2. A date is NOT required.

c. TESTAMENTARY CAPACITY
i. For a will to be valid, a testator must have testamentary capacity at the time of executing the
will. CA law presumes T was sane if:
1. (1) T must be 18 years old;
2. (2) T must be able to understand the extent of her property;
3. (3) T must know the natural objects of her bounty (spouse, issue, parents, and all those
affected by the will); and
4. (4) T must know the nature of her act (know she is executing a will).

ii. Insane Delusion

1. If at the time of execution the testator was suffering from an insane delusion, the part
of the will affected by the insane delusion is invalid, which is present if:
a. (1) T has a false belief;

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b. (2) Which was a product of a sick mind;

c. (3) There is not a scintilla of evidence to support the belief; and
d. (4) the delusion affected T’s will.

iii. Fraud
1. Fraud invalidates a will, or a part of a will, depending on the type of fraud. The five
elements necessary for a finding of fraud are: (1) representation, (2) of material fact, (3)
known to be false by the wrongdoer, (4) for the purpose of inducing action/inaction,
and (5) which in fact induces action or inaction. There are three types of fraud:
a. Fraud in the Execution – where someone forges T’s will, or gives T a document
to sign that is purportedly non-testamentary when in fact it is and T signs it.
i. The entire will is invalid.
b. Fraud in the Inducement – T intends the document to be his will, but the
wrongdoer’s representations affect the contents of T’s will (the distributions
made in the will)
i. Only the portion affected by the fraud is invalid.
c. Fraud in Preventing the Testator from Revoking – Variation of fraud in the
inducement, where a wrongdoer has T change a disposition with the
misrepresentation. Fraud makes it no revocation of the prior disposition.
i. The portion of the affected will is invalid.

iv. Undue Influence

1. Undue influence arises when the testator’s free agency is subjugated. There are three
theories of undue influence: (1) the prima facie case, (2) common law presumption, and
(3) statutory undue influence.
2. Prima Facie Case: (SOAP UR)
a. There are four elements to the prima facie case of undue influence:
i. (1) Susceptibility – T has some weakness that he is able to have his free
will subjugated (psychological, financial, physical).
ii. (2) Opportunity – wrongdoer has access to T.
iii. (3) Active Participation – wrongful act gets the gift – use of force, threat
of force, blackmail, etc.
iv. (4) An Unnatural Result – wrongdoer ordinarily would not be expected
to take a devise – no relationship.
3. Common Law Presumption
a. There are three elements to the common law presumption of undue influence:
i. (1) Confidential Relationship b/w T and Wrongdoer – such as
attorney/client, doctor/patient, trustee/beneficiary.
ii. (2) Active Participation
iii. (3) An Unnatural Result
4. Statutory Presumption
a. California law statutorily presumes that a donative transfer to certain persons is
the result of undue influence:
i. (1) the drafter of the instrument,
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ii. (2) is a person in a fiduciary relationship with T who transcribed the

instrument, or
iii. (3) a care custodian of a dependent adult if document executed during
care or within 90 days before or after care.
1. Exception - Care custodian presumption does not apply if the
custodian had a personal relationship w/ T before T became
incapacitated
b. The presumption is conclusive with respect to the drafter, his relatives and
certain associates. Otherwise, it’s a rebuttable presumption by clear and
convincing evidence. A person disqualified by this provision is deemed to have
predeceased T.
c. Does not apply if the transfer is less than $5000 (if estate is worth more than
$100,000) or if reviewed by independent attorney or approved by court.
d. CONFLICT OF LAWS
i. Wills not made in California can be probated in California if the will complies with the formalities
of execution of (1) CA law, (2) the law of the state where executed, or (3) the law of the place
where at the time of execution or at the time of death T is domiciled, has a place of abode, or is
a national.

II. Revocation of Wills

a. TERMINATION BY SUBSEQUENT WRITTEN INSTRUMENT
a. A testator can revoke a will with a subsequent written instrument either expressly in the
subsequent instrument, or impliedly through inconsistent dispositions in the subsequent
instrument, the prior will’s inconsistent terms are superseded.

b. TERMINATION BY PHYSICAL ACT

a. A will must be burned, torn, cancelled (lining out), destroyed or obliterated (erased), with the
simultaneous intent to revoke. It can be done by a third person as long as such person destroys
the will in the presence of T and at T’s direction.
i. An interlineation (writing between the lines)
1. Interlineation of a holograph constitutes revocation of an altered position and a
valid new disposition.
2. Interlineation in an attested will is NOT valid, and may act as a revocation. But
such an interlineation may be a valid holographic codicil to the attested will and
may be valid, if the requirements are met.
ii. Duplicate Wills – physical destruction of one of two executed copies is a revocation.
iii. Destruction of Codicil – destruction of a codicil does NOT revoke a will.
iv. Destruction of Will – destruction of a will revokes a codicil, unless T does not intend.
b. Will not found at death – if a will was known to be in T’s possession and upon T’s death the will
cannot be found, it is presumed that the will is destroyed with intent to revoke.
c. No Increase of Gift – T cannot increase a gift to a beneficiary by writing a different amount in a
will, T can only decrease a gift by this method.

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c. TERMINATION BY OPERATION OF LAW

a. Omitted Child (Pretermitted Child)
i. A child born or adopted after all testamentary instruments are executed and not
provided for in any testamentary instrument, will take his share equal in value to what
he would have received had the decedent died intestate.
1. Exceptions:
a. (1) omitting the child was intentional, and that intent is shown on the
face of the will;
b. (2) T provided for the child outside of the will with the intent that such
transfer be in lieu of any testamentary devise; or
c. (3) the decedent had one or more children at the time of executing the
will, and transferred substantially all of his estate to the parent of the
omitted child.
ii. Corollary: Children born before all testamentary instruments and not provided for in
any instrument are not pretermitted and take nothing, unless testator erroneously
believed that the child was dead or non-existent.

b. Omitted Spouse
i. A surviving spouse who married the decedent after the execution of all testamentary
instruments and is not provided for in any testamentary instrument, will take her share
of the estate she would have received had the decedent died intestate (½ of CP, ½ of
QCP, and not to exceed ½ of SP).
1. Exceptions:
a. (1) omitting the spouse was intentional, and that intent is shown on the
face of the will;
b. (2) T provided for the spouse outside of the will with the intent that
such transfer be in lieu of any testamentary devise; or
c. (3) the omitted spouse signed a waiver (which must be in writing, after
a full disclosure and independent counsel).

c. Dissolution of Marriage
i. If there is a final dissolution of marriage, this revokes any devise to the prior spouse. It
doesn’t apply if there is a mere legal separation. All devises are revived if the spouse’s
re-marry.

d. DEPENDENT RELATIVE REVOCATION (DRR)

a. DRR allows a court to disregard a revocation that was caused by mistake. If T executes Will #1,
then executes Will #2 and revokes Will #1 thinking that Will #2 effectuates his intent, but it turns
out T is mistaken, and Will #2 is invalid as a will, or if valid, fails to effectuate his intent. DRR
allows the court to ignore the revocation of Will #1 on the ground that T revoked Will #1 on the
mistaken belief that Will #2 effectuated his intent. Thus, if
i. (1) T revokes her will, or a part of her will,
ii. (2) in the mistaken belief that a substantially identical will or codicil effectuates her
intent,
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iii. (3) then by operation of law the revocation of the first will be deemed conditional,
dependent, and relative to the second effectuating T’s intent, and if the second never
effectuates T’s intent, the first was never revoked.
b. **THE WILLS MUST BE SUBSTANTIALLY THE SAME**

e. REVIVAL
a. If T executes Will 1, and then subsequently executes Will 2 which revokes Will 1, and after that
revokes Will 2 by physical act or subsequent written instrument, Will 1 is only revived if T
manifests intent to revive Will 1. It is not automatically revived.

III. Components of the Will

a. INTEGRATION
a. All papers that are actually present at execution are integrated into the will as long as T
intended that all the papers be a single will. This is shown by either a physical connection (all
papers are stapled together), or by an internal logical connection (end of page 2 matches with
beginning of page 3).
b. CODICIL
a. A codicil is a testamentary instrument that modifies, amends or revokes an earlier will and
which is executed with the same formalities as a will. A codicil republishes a will so that the
will is deemed re-executed at the time of the codicil. Thus the will is interpreted as of the date
of the codicil.
i. **Due to the republication, watch for pretermission issues.
b. Revocation of Codicils:
i. If a codicil is revoked after a will, there is a rebuttable presumption that testator
intended to revoke only his codicil.
ii. If a will is revoked after a codicil was created, there is a rebuttable presumption that
testator intended to revoke the will and codicil.

c. INCORPORATION BY REFERENCE
a. A separate document may be incorporated into a will as long as:
i. (1) there is a separate document or writing;
ii. (2) the document is in existence when the will was executed;
iii. (3) the document is clearly identified in the will; and
iv. (4) T must have intended to incorporate the document into the will.
b. You can incorporate by reference any invalid deed, K, or will – thereby validating such
document.

d. FACTS OF INDEPENDENT SIGNIFICANCE

a. Facts of independent significance apart from its impact on the will allows a court to fill in the
blanks of T’s will with parol evidence that is trustworthy – as long as the fact is independent of
the testator’s will – IE: the fact exists even without the will.

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e. WRITING DISPOSING OF LIMITED TANGIBLE PERSONAL PROPERTY

a. Under CA Prob. Code 6132, a writing, even if it cannot be incorporated by reference or is a fact
of independent significance, can be admitted in probate as long as the following are met:
i. (1) the writing is referred to in the will, dated, and signed
ii. (2) writing must describe items and recipients with reasonable certainty
iii. (3) writing may be executed before or after the will
iv. (4) writing directs the disposition of tangible personal property value at not more than
$5,000 per item and not more than $25,000 in the aggregate.

f. POUR-OVER WILLS
a. A testator by will can transfer assets into an inter vivos trust, as long as the trust is identified in
the will and its terms are set forth in a written instrument which was executed before or at the
same time as the execution of the will.

IV. Interpretation of Wills & Distribution of Estate

a. AMBIGUITIES
a. Mistake in Content
i. If the wrong beneficiary or the wrong gift is made, the court will only remedy a mistake
if it is a mistake in addition by striking out the wrong name/gift.
1. The court will NOT remedy a mistake in omission where T accidentally left out a
name/gift – b/c a court will not rewrite a will.
b. Mistake in Execution
i. If a testator signs a wrong document, believing the document to be non-testamentary,
the document will NOT be probated.
1. However, in the case of reciprocal wills (separate wills of two or more people
that contain reciprocal provisions) or mutual wills (a single will of two or more
people that serves as the will of each) – the court will substitute the signatures
if each signed the wrong will.
c. Mistake in Inducement
i. If a particular gift is made or not made on the basis of T’s erroneous beliefs (thinking
someone is dead but they are not) – the court will only remedy only if both the mistake
AND what T would have done if not mistaken appear on the face of the will.
d. Mistake in Description
i. Any mistake or ambiguity with respect to the meaning of the words used by the testator
may be proven with extrinsic evidence. Latent ambiguities are those that do not
appear on the face of the will, and patent ambiguities appear on the face of the will. CA
has abolished the distinction, and allow extrinsic evidence for any ambiguity to
determine what T meant by the words he used.
e. Mistake in Validity of Subsequent Instrument – SEE DRR above.

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b. CLASSIFICATION OF GIFTS
a. Specific Devise
i. A specific devise is a gift of a particular item (unique). T must have the intent that the
beneficiary take this particular thing, and nothing else.
b. General Devise
i. A general devise is payable out of the general assets of the estate.
c. Demonstrative Devise
i. A demonstrative devise is a hybrid between a general and specific gift, which is from a
particular fund, but it that is not enough, the executor takes the rest from the general
property.
d. Residuary Devise
i. All other property not expressly disposed of in the will.
c. ADEMPTION
a. By Extinction:
i. Ademption by extinction is when a gift fails because it is not part of the decedent’s
estate at death. It applies only to SPECIFIC GIFTS.
ii. In CA, only applies if T intended for the gift to fail.
b. By Satisfaction:
i. Ademption by satisfaction applies to GENERAL/DEMONSTRATIVE gifts, in which the
testator transfers property to the beneficiary after executing the testamentary
instrument but before his death, as long as the testator had the intent to satisfy the
gift.
1. The testator’s intent must be expressed in a contemporaneous writing either
signed by the testator or the donee.

d. ABATEMENT
a. Abatement refers to the gifts in the will being reduced when the estate is not sufficient to pay
all of the debts or devises. The testator can control the order of abatement, but absent T’s
control, abatement is in the following order: (1) intestate property, (2) residuary gifts, (3)
general gifts to non-relatives, (4) general gifts to relatives, (5) specific gifts to non-relatives, and
then (6) specific gifts to relatives.
b. Advancements – same rules, but applies when the testator dies intestate. Whereas abatement
is when the decedent has a will.

e. LAPSE & ANTI-LAPSE

a. Lapse – when a beneficiary dies after T executes his will be before T dies, the gift to the
beneficiary lapses (FAILS), and the gift falls into the residue.
i. Class Gifts: Gifts to a class of persons go to only the members of the class who survived
T, who take equal shares.
b. Anti-Lapse – CA’s anti-lapse statute applies only if the devisee who predeceased T was kindred
(BLOOD RELATIVE) of T, or kindred of a surviving, deceased or former spouse of T who leaves
issue. In such cases, the devise does NOT FAIL, and the issue of that devisee will step into the
shoes of the devisee and take the gift per capita with representation

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i. Anti-lapse does not apply if there is a contrary intention or a substitute disposition in

the will.

f. INCREASE DURING T’s LIFETIME – STOCK SPLITS/DIVIDENDS

a. Stock Splits: If T owned the shares of stock bequeathed in the will when the will was executed,
the beneficiary receives any increase or change in the stock resulting from corporate action. If
T did NOT own the stock at the time the will was executed, the beneficiary receives only the
number of shares specified in the will. It matters not that the stock was specific or general
devise.
b. Stock Dividends: The beneficiary takes the additional shares produced by the stock dividend if
the T owned shares of stock matching the shares being bequeathed at the time T executed the
will.

g. INCREASE AFTER T’s LIFETIME – INTERESTS AND PROFIT

a. Specific Gifts – devisee of specific gift also gets all increases in interest, dividends, and rent.
b. General Gifts – receives interest based on a formula starting one year after T’s death.
c. Residuary – does not receive any interest.

h. EXONERATION
a. A beneficiary of a gift of real property takes subject to any lien existing on the date of T’s
death, regardless of a directive in the will to pay debts.

V. Intestate Succession
a. SHARE OF SURVIVING SPOUSE:
a. CP & QCP: Surviving spouse gets decedent’s ½ CP and ½ QCP.
b. SP: Surviving spouse gets all SP if decedent leaves no issue, parents, siblings, or issue of
deceased siblings. 1/2 if decedent survived by 1 child or issue of predeceased child. 1/2 if
decedent survived by no issue but leaves parents or parent's issue. 1/3 if decedent survived by
two or more children or issue of predeceased children.

b. IF NO SURVIVING SPOUSE, THEN:

a. (1) Issue, (2) parents, (3) issue of parents, (4) grandparents, (5) issue of grandparents.
b. Per Capita Distribution: issue of the same degree take equally in their own right (X’s three
children each take 1/3).
c. Per Capita with Representation: Distribution made at first level someone is living, equal shares
to that generation and to deceased members of that generation who leave living issue.
d. Per Stirpes: Distribution made at first generation regardless of who is living and then to their
issue.

c. SPECIAL RULES:
a. Adopted Children: Adopted children are treated as a natural child of the adopting parents
i. Inheritance from Adoptive Parents: An adopted child inherits from the adoptive
parents and from their relatives.

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ii. Severance from Natural Parents: Adoption severs the parent child relationship
between an adopted person and her natural parent for inheritance purposes unless the
adoption was by a spouse of either natural parent of the adopted person or after the
death of either natural parent.
b. Stepchildren:
i. If a stepchild has been held out to the world as the parent’s own child, the stepchild
may be treated by a court as the descendant of the stepparent who has died intestate
although the child was never formally adopted (adoption by estoppel).
c. Posthumous Relatives:
i. A child conceived during the lifetime but born after the death of a decedent who dies
intestate is an heir and takes under intestacy laws.

d. SIMULTANEOUS DEATH
i. If it cannot be established by clear and convincing evidence that a person who would
otherwise be an heir has survived the decedent by 120 hours, it is deemed that the
person failed to survive the decedent. If title to property depends on survival, the
property of each person will be treated as if that person had survived the other (with
exceptions for husband and wife, insured and beneficiaries, joint tenants, and certain
beneficiaries).

VI. Bars to Succession

a. Killers – A person who feloniously and intentionally kills the decedent is not entitled to any benefit from
the decedent’s estate by will, trust, intestacy, joint tenancy, life insurance, or otherwise.
a. A conviction is conclusive (including guilty pleas)
b. Otherwise, probate court determines by a preponderance of the evidence.
b. Elder Abuse – A person found liable for elder abuse by clear and convincing evidence will be treated as if
she predeceased the decedent. It includes physical abuse, neglect, or fiduciary abuse.
c. No Contest Clause – A no-contest clause will be enforced unless the beneficiary, with reasonable cause,
brings contest on the grounds of forgery, revocation, or invalid transfer to person who drafted the
instrument.

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