Professor Wenger

Wills & Trusts

Fall 2016

Module 3
Will Creation
For an attested will, youll need:
Writing
o Required because of evidentiary and other concerns
Signature
o May be in the testators presence and by the testators direction.
Why? Because people unable to sign
Two witnesses
o Must:
Be present at the same time
Witness, either the will signing, or testators acknowledgement of a
signature.
Understand that theyre signing as witnesses to the testators will.
o New substantial compliance provisions clear and convincing evidence
o Can anyone witness a will?
6112 limitations
Presumption
Intestate share if fails
o so, witnesses must:
be generally competent to be a witness
for example, not delusional, able to actually see and remember the event,
and so on.
o What if the witness is interest?
The will I not facially invalid
Absent at least two disinterested witnesses, this creates a presumption of
impropriety.
That presumption will affect the BOP
Doesnt apply to fiduciary only gift.
For an attested will you need:
- Writing
- 2 witnesses
o Must sign
o Present at the same time
o Witness your signature or acknowledgement
o Interested witnesses?
- Your signature
Holographic Wills
- 6111 provides for a few things:

Professor Wenger
-

Wills & Trusts

Fall 2016

General rule on holographic wills

Provision for dates
o if the date is uncertain, provisions are invalid to the extent they conflict with a
later will (why?)
o lesson: put the date on your holographic will.
If the date may be in a period of incompentency, invalid.

For Holographic Wills

- material provisions in your handwriting
- your signature
- dated
- do not need witnesses
Revocation
- can be made by
o new will
o destruction of old will, either by testator or by someone else at testators
instruction
- in general, if a will is not validly revoked, it will be admissible.
- Also, a will may be revoked by changed family circumstances
6122, 6122.1, and 6123 provide that:
- Default rule that dissolution of marriage or domestic parnetship ends devise
- Rights ended by this section will be revived on remarriage
- Former spouse treated as predeceasing
- Only applies to divorce or annulment, not separation
- These are the only changes in circumstances that revoke will provision.
- If Will 2 revokes Will 1, and Will 2 is then revoked, Will 1 will not be automatically
revived. It will be revived only on evidence that testator meant to revive Will 1.
Contracts
- in CA, youll need one of these
o K set out in a will
o K references in will, plus extrinsic evidence
o Signed writing
o Clear and convincing agreement (w/ beneficiary or third party,) or equitably
enforceable agreement (with beneficiary or third party).
- Joint wills wont create presumption.
- Applies to making or revoking will, or dying intestate.