# How to Ace FYLSE/Wills Outline
## Choice of Law

Under CA law, an out of state will is valid if executed under CA law, the law of the state where the will is executed, the law of the place of testator's domicile or the law where the testator was a national.

## Valid Formal Will

A will is valid if the testator is at least 18 years old and of sound mind, possess the requisite testamentary intent, signs the will in the joint presence of 2 witnesses that understand the document is the testator's will and who signs the will.
   A. My Bigco stock to my friend, Fred.
   B. The residue of my estate to my daughter, Donna.

### Witness Issues

The general rule is that a beneficiary cannot be considered as a disinterested witness for purpose of attesting to a will. However, if a witness is deemed to be interested, this does not affect the validity of the will. Rather, this simply means that the interested witness only takes that share of the estate that he would be entitled to in the absence of the will (i.e., his intestate share).
Under the California law, a trustee of a trust is not considered a beneficiary under a will. Rather, the trustee is a fiduciary who does not take a gift under the will in her personal capacity.
Tess took this will to the house of Wit, a neighbor, declared to Wit that it was her will, and signed the will in Wit’s presence. Wit then signed the will as witness, although he did not know its contents.
Tess next took the will to the house of Ness, another neighbor, and asked Ness to “witness this paper.” Ness signed the will as witness, although he did not understand that it was a will.|J96Q6}}

## Valid Holographic Will

Under California Probate Code § 6111, a holographic will, whether or not witnessed, is valid if the signature and the material provisions are in the handwriting of the testator.

## Capacity

A testator who executes a will must have capacity when the will is executed for the will. Capacity requires (1) T must be at least 18 (2) T must understand the natural objects of her bounty, (3) must understand the nature and value of property (4) T must understand that she is making a will.

## Insane Delusion

Even if a testator had capacity at the time she executed a will, affected parts of a will will be invalid if (1) the testator had a false belief; (2) which was the product of a sick mind; (3) there was no evidence supporting the belief; and (4) it affected w

## Revocation of a Will

Will is freely revocable during the testator's lifetime. A will can be revoked either expressly or impliedly. Express revocation requires the testator to use language that makes intent clear that the original will is revoked by a later will. A will can be impliedly revoked if the second will contradicts with the first will and the second will bequeaths substantially all of testator's property. A will may be revoked by a physical act or by execution of a subsequent instrument.

### Revocation by Physical Act

Under California Probate Code § 6120, a will is revoked by being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it.

## Incorporation by Reference

California Probate Code § 6130 provides that a writing in existence when a will is executed maybe incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.

## Codicil

A codicil supplements an existing will executed with full formalities according to the statute of wills that revokes only inconsistent provisions of the prior will and adds new provisions. Both the codicil and prior will are valid and deemed executed as of the date of the codicil.
       1. $100,000 to my friend, Al.
       2. My residence on Elm St. to my sister Beth.
       3. My OmegaCorp stock to my brother Carl.
       4. The residue of my estate to State University (SU).
   In 1999, Tom (testator) had a falling out with Al and executed a valid codicil that expressly revoked paragraph 1 of the will but made no other changes.

## Dependent Relative Revocation

The doctrine of dependent relative revocation (DRR) applies when a testator revokes his will upon a mistaken belief that another disposition of his property would be effective and but for this mistake would not have have voted the will.
       Article 1: I leave $10,000 to my friend Frank.
       Article 2: I leave my shares in Beta Corp stock to my friend Frank.
       Article 3: I leave $80,000 to my sister Sue’s issue.
       Article 4: I leave the residue of my estate to my wife.
   The $10,000 figure in Article 1 was crossed out and $12,000 was handwritten in Tom’s hand above the $10,000 figure. Next to the $12,000 Tom had handwritten, “Okay.2/15/02.”

## Revival

The doctrine of revival holds that revocation of subsequent will serves to automatically reinstate the earlier will. This rule is NOT followed in California.

## Integration

Integration permits the bringing together of separate papers to a single will, if certain requirements are met.

## Undue influence, Duress, Menance, Fraud

Under California Probate Code § 6104, the execution of a will is ineffective to the extent it was procured by duress, menace, fraud, or undue influence.

## General and Specific Gift

A general gift is one which refers only to the economic value of the property, while a specific gift describes a particular piece of property.
   2. I give my automobile to my cousin, Charles.
       1. $100,000 to my friend, Al.
       2. My residence on Elm St. to my sister Beth.
       3. My OmegaCorp stock to my brother Carl.
       4.The residue of my estate to State University (SU).

## Class Gift

If the gift is construed as a class gift, only surviving class members and not a specified person take because the will speaks at the time of the testator's death.

## Lapse

Under California Probate Code § 21109, a transferee who fails to survive the testator does nottake under the will.

## Anti-Lapse

California has an anti-lapse statute. Under California Probate Code § 21110, if a transferee is dead when the instrument is executed, or is treated as failing to survive the testator, the issue of the deceased transferee take in the transferee’s place.

## Residue of Estate

The beneficiary of a will must survive the testator or the gift lapses and passes by the residual estate.
   <omitted> Alfred was survived by friend, Frank, cousin Charles, grandchildren Allison and Ben, and friend Mary. David, a grandchild of Alfred, who was alive when the will was executed, and friend Oscar has predeceased Alfred. David's child Pat and Oscar's child Karen both survived Alfred.

## Pretermitted Spouse

If a will or trust is formed before marriage, and the spouse is omitted, it will be presumed the omission was accidental and the spouse will be entitled to his or her intestate share. If divorce has occurred in the interim, it will be presumed the spouse was intentionally omitted and the spouse gets nothing.

## Pretermitted Child

A pretermitted child is one born or adopted after a will was executed. The omitted child is entitled to an intestate share unless the omission was intentional, the child was provided for outside the will or the property was left to a parent when another child was alive at the time of the execution.
When a child was born before the will or trust was executed, the testator did not know of the child's existence, the child will be treated as a pretermitted heir and get the intestate share.

## Abatement

Abatement is the process by which money is cleared up for a new gift by reducing previously existing gifts.

## Ademption

Specific devises that are not present when testator dies are adeemed by extinction. This ademption is not applied to demonstrative gifts and such gifts are satisfied out of other property. In California, whether a gift is adeemed is determined solely by the intent of the testator at the time of the sale of the asset as to whether the new asset was to be a replacement and the bequest not adeemed.

## Conservator

A court can appoint a guardian or conservator to act on behalf of a person who lacks the mental capacity to act on their behalf. They have the authority to make legal decisions, such as drafting a new will. However, a conservator still owes the testator a fiduciary duty of care and loyalty. The conservator must act in the best interest of the testator and not make any decisions that are self-serving and are directly adverse to T's interest.

## Intestacy

Under California Probate Code § 6400, any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs.