Chapter 5 Wills: Validation Requirements, Modification, Revocation, and Contests

Requirements for a Valid Will o Testamentary Intent o Capacity o Writing o Signed by Testator/trix o Witness Cal. Prob. Code §6110 (a) Except as provided in this part, a will shall be in writing and satisfy the requirements of this section. (b) The will shall be signed by one of the following: (1) By the testator. (2) In the testator's name by some other person in the testator's presence and by the testator's direction. (3) By a conservator pursuant to a court order to make a will under Section (c) (1) Except as provided in paragraph (2), the will shall be witnessed by being signed, during the testator's lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator's acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator's will. 2

Testamentary Intent o Testator must intend instrument to operate as his/her last will o Usually expressed in the document o “This is my last will and testament…” 3

Capacity o Sound mind o Cal. Prob. Code §6100. (a) An individual 18 or more years of age who is of sound mind may make a will. o Natural objects of the testator’s bounty o Family members and other organizations for whom the testator has affection o Cannot have insane delusions o Lucid intervals o Temporary restoration of sanity o Permissible to make valid will, e.g. dementia 4

Capacity (con’t) o Cal. Prob. Code § (a) An individual is not mentally competent to make a will if at the time of making the will either of the following is true: (1) The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individual's property, or (C) remember and understand the individual's relations to living descendants, spouse, and parents, and those whose interests are affected by the will. (2) The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual's devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done. 5

Writing o Must be hand written or typed o Cal. Prob. Code §6110 (a) Except as provided in this part, a will shall be in writing and satisfy the requirements of this section. 6

Signature o Must be signed by its maker o Can be signed by a mark o Intent to sign and make will (Million Dollar Baby) o Cal. Prob. Code §6110. (b) The will shall be signed by one of the following: (1) By the testator. (2) In the testator's name by some other person in the testator's presence and by the testator's direction. (3) By a conservator pursuant to a court order to make a will under Section

Witnesses o Attest to the testator’s signature o Attest to intent to be bound o Are capable and competent to act o Is the witness capable of testifying as to the facts of the execution of the will? o Must be competent at the time a will is attested o Disinterested o Person who is not a beneficiary and witness of the same will o Publication that it is testator’s will o Declaration made by testator that it is their will o Can a paralegal be a witness to a will? 8

Disinterested Witnesses o Cal. Prob. Code §6112. (a) Any person generally competent to be a witness may act as a witness to a will. (b) A will or any provision thereof is not invalid because the will is signed by an interested witness. (c) Unless there are at least two other subscribing witnesses to the will who are disinterested witnesses, the fact that the will makes a devise to a subscribing witness creates a presumption that the witness procured the devise by duress, menace, fraud, or undue influence. This presumption is a presumption affecting the burden of proof. This presumption does not apply where the witness is a person to whom the devise is made solely in a fiduciary capacity. (d) If a devise made by the will to an interested witness fails because the presumption established by subdivision (c) applies to the devise and the witness fails to rebut the presumption, the interested witness shall take such proportion of the devise made to the witness in the will as does not exceed the share of the estate which would be distributed to the witness if the will were not established. Nothing in this subdivision affects the law that applies where it is established that the witness procured a devise by duress, menace, fraud, or undue influence. 9

Codicil o An amendment to the Will o Should a new will be drafted? o Codicil vs. Will o Codicil must have same requirements as a Will o Changes the terms of the Will 10

Revocation of Will o Ambulatory o Revocable and subject to change o Ambulatory until death Revocation by Act tears, burns, cancel, cross out, destroy Must have intent to revoke Cal. Prob. Code §6120. A will or any part thereof is revoked by any of the following: (a) A subsequent will which revokes the prior will or part expressly or by inconsistency. (b) Being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testator's presence and by the testator's direction. 11

Revocation of Will - Presumption Cal. Prob. Code §6124. If the testator's will was last in the testator's possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator's death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence. 12

Lost Wills o Cal. Prob. Code §8220. Unless there is a contest of a will: (a) The will may be proved on the evidence of one of the subscribing witnesses only, if the evidence shows that the will was executed in all particulars as prescribed by law. (b) Evidence of execution of a will may be received by an affidavit of a subscribing witness to which there is attached a photographic copy of the will, or by an affidavit in the original will that includes or incorporates the attestation clause. (c) If no subscribing witness resides in the county, but the deposition of a witness can be taken elsewhere, the court may direct the deposition to be taken. On the examination, the court may authorize a photographic copy of the will to be made and presented to the witness, and the witness may be asked the same questions with respect to the photographic copy as if the original will were present. o Cal. Prob. Code §8223. The petition for probate of a lost or destroyed will shall include a written statement of the testamentary words or their substance. If the will is proved, the provisions of the will shall be set forth in the order admitting the will to probate. 13

Lost Wills – Statute of Limitations o Cal. Prob. Code §8000. (a) At any time after a decedent's death, any interested person may commence proceedings for administration of the estate of the decedent by a petition to the court for an order determining the date and place of the decedent's death and for either or both of the following: (1) Appointment of a personal representative. (2) Probate of the decedent's will. (b) A petition for probate of the decedent's will may be made regardless of whether the will is in the petitioner's possession or is lost, destroyed, or beyond the jurisdiction of the state. 14

Operation of Law o Rights that pass by rules of law without act or knowledge o For example o Marriage o Divorce o Cal. Prob. Code §6122. (a) Unless the will expressly provides otherwise, if after executing a will the testator's marriage is dissolved or annulled, the dissolution or annulment revokes all of the following: (1) Any disposition or appointment of property made by the will to the former spouse. o Can revoke all or part of will or its provisions 15

Subsequent Writing o New will o Codicil o Both can revoke or change the terms of a will o Codicils should be avoided – a new will should be drawn 16

Will Contests o Who can contest? o Person who has standing o May lose a pecuniary interest (share of estate) o If will is invalid, then distribute assets through intestacy laws o Grounds o Not properly executed o No notice of probate given to heirs or creditors o Forgery o Will requirements not met o Capacity o Revocation 17

Undue Influence o May invalidate a will o What if the client leaves the attorney/paralegal a gift in the will? 18

In terrorem clause o No contest clause o A clause in a will that if a beneficiary of the will objects to probate or challenges the will and its distributions, contest and forfeits all benefits of the will o If the contest is successful, costs of the contest may be deducted from the new beneficiary’s share of the estate 19