Wills

Question 1

Share of Issue

Answer 1

1. If surviving issue are of equal degree of kinship (e.g., all children) property passes per capita, equally.
2. If of unequal degree, then per capita with right of representation, under this method property passes in equal shares at the first generation at which there are living takers, then on to their issue.

Question 2

Intestate Succession Hierarchy

Answer 2

To extent estate not passing to surviving spouse or domestic partner:

1. Issue;
2. Parents;
3. Descendants of parents;
4. Maternal and/or Paternal Grandparents or their Issue
5. Issue of Predeceased Spouse
6. Decedents next of kin
7. Parents of predeceased spouse
8. Escheated to the state.

Question 3

Nature of Wills

Answer 3

1. Operates on persons and property existing at the time of testator’s death.
2. Maker of will must be at least 18 and of sound mind.
3. Must dispose of property, cannot just disinherit an heir.

Question 4

Testamentary Intent

Answer 4

1. Testator must have present intent to make a PARTICULAR INSTRUMENT her will.
2. An ineffective deed will be denied probate even if signed and attested because of a lack of testamentary intent.

Question 5

Conditional Wills: Parol Evidence

Answer 5

1. Parol evidence is not admissible to show that a will absolute on its FACE was intended to be conditional.
2. May be admitted to show that the instrument was not meant to have any effect at all.
3. Conditional codicil republishes the will as of the date of execution of the codicil even if the condition does not occur.

Question 6

Will Formalities

Answer 6

1. Will must be in writing;
2. Will must be signed by the testator;
3. The testator must sign or acknowledge the will or his signature in the JOINT PRESENCE of at least two witnesses.
4. The two witnesses must sign the will during the testator’s lifetime.
5. The witnesses must understand that the instrument being signed is the testators will.

Notes:

1. Testator may ask someone to sign for him.
2. Any mark affixed with intent that it operates as signature suffices.
3. Witness must be competent.

Question 7

Interested Witness

Answer 7

A witness with a beneficial interest is competent to testify, but it raises a rebuttable presumption that it was procured by duress, menace, fraud, or undue influence. However, if there are two (or more) other disinterested witnesses then it doesn’t matter.

If fails to rebut presumption, they only get intestate share (if any).

Question 8

Harmless Error Doctrine (the “Clear and Convincing” Standard)

Answer 8

A will or codicil that is not executed in compliance with the witnessing requirements may NEVERTHELESS be admitted to probate if the proponent of the will establishes by clear and convincing evidence that at the time the testator signed the document he INTENDED it to constitute his will.

Question 9

Holographic Wills

Answer 9

This is a handwritten will. It is permitted in California if the signature and MATERIAL provisions of the will are in the testator’s own handwriting. A holographic will need not be signed at the end; thus a signature can be ANYWHERE in the will.

Holographic will may be altered by handwritten changes

Question 10

Oral Wills

Answer 10

Not recognized in California.

Question 11

California Statutory Will

Answer 11

Allows execution of a will without an attorney. Requires: (i) testator must complete the blanks and sign the will; (ii) each witness must observe the testator’s signing; and (iii) each witness must sign in the presence of the testator.

Question 12

Integration

Answer 12

Physical attachment or internal coherence of pages raises a presumption that the pages were present and intended to be a part of the will when it was executed. Proof of integration can also be provided by testimony or other extrinsic evidence.

Question 13

Codicil

Answer 13

1. A codicil modifies a previously executed will and must ITSELF be executed with the SAME formalities.
2. Can be admitted to probate by itself.
3. Under the doctrine of republication by codicil, a will is treated as having been executed on the date of the last codicil.

ANY ALTERATION ON FACE OF WILL AFTER THE WILL HAS BEEN SIGNED AND ATTESTED IS INEFFECTIVE UNLESS THE WILL IS REEXECUTED WITH PROPER FORMALITIES

Question 14

Incorporation by Reference

Answer 14

A document may be incorporated into the will by reference so that it is considered a part of the will if:

(i) the document was in existence at the time the will is executed;
(ii) it was sufficiently described in the will so that its identification is clear; and
(iii) there was satisfactory proof that the proffered document is the document described in the will.

Question 15

Incorporation by Reference Exception for Tangible Personal Property

Answer 15

An exception to the requirement that the property be in existence at the time the will is executed is that a decedent may dispose of items of tangible personal property in a writing that does NOT comply with the requirements for incorporation by reference if:

(i) an unrevoked will refers to the writing;
(ii) the writing is dated and is either in testators HANDWRITING OR SIGNED by the testator; and
(iii) the writing describes the items and recipients with reasonable certainty.

No single item may exceed $5k, Total may not exceed $25k.

Question 16

Acts of Independent Significant

Answer 16

A will may dispose property by reference to acts and events, even though they are in the future and unattested, if they have significant other than their effect on dispositions made in the will.

Example: each person in my employ at time of death.

Question 17

Pour Over Gift to Inter Vivos Trust

Answer 17

California has enacted the Uniform Testamentary Additions to Trusts Act which permits the pour over of estate assets to an intervivos trust as AMENDED on the testators death if:

1. The trust is identified in testators will;
2. Its terms are clearly set forth in a written instrument; and
3. Said instrument was executed before, concurrently, or within 60 days after the EXECUTION of testator’s will.

Question 18

Revocation: By Written Instrument

Answer 18

1. Express revocation: Revoked by a later will or codicil executed with proper formalities expressly revokes the prior will. However, an attested will MAY be revoked by a holographic will and vice versa.
2. Implied revocation: Where a later will or codicil contradicts the prior will, the terms of the prior will are that are inconsistent are superseded or nullified. (If only partial inconsistency and a kid is mentioned in either, then the kid claims as a pretermitted heir).

Question 19

Revocation by Physical Act

Answer 19

Elements: Intent to revoke + physical act. Where done by another person, must be in testator’s presence AND at testator’s direction.

Total vs. Partial Revocation: Interlineation of a holograph constitutes both a revocation of an altered provision and a valid new disposition. The prior signature is adopted.

Question 20

Effect of Physical Revocation on Other Testamentary Instruments

Answer 20

1. Physical destruction of one of two executed duplicate copies revokes the will.
2. Physical destruction of a codicil does not revoke a will, even if the testator so intends.
3. Physical destruction of a will revokes all codicils thereto written on separate pieces of paper, unless testator does not so intent.
4. When the will and codicil are written on same paper, defacing will portion revokes both, but just defacing the codicil only revokes the codicil, unless testator intent indicates otherwise.

Question 21

Sufficiency of the Physical Act

Answer 21

1. Burning, even marginal.
2. Tearing.
3. Obliteration, must affect some material part of will.
4. Cancellation, drawing lines through words of will. Writing VOID in margin not cancellation. Defacing sig revokes will.

Question 22

Concurrent Intent

Answer 22

Intent must be CONCURRENT with the physical act. Dont be fooled on the exam.

Question 23

Will not found at death

Answer 23

Presumed revoked when will was last in testators possession.

Question 24

Increase by Physical Act not PErmitted

Answer 24

Cannot increase gift to beneficiary by cancelling words in will, can only decrease it.

Question 25

Lost or Destroyed Will

Answer 25

Where a will is lost or destroyed by accident, without being revoked, the will is admissible to probate on adequate proof of its contents.

Question 26

Revocation by Operation of Law: Spousal Omitted Share

Answer 26

California protects an unintentionally omitted spouse.

Elements: (i) testator marries AFTER executing will; (ii) spouse survives testator; and (iii) spouse not provided for in will.

Effect: Spouse takes CP + Intestate share. Cannot exceed 1/2 of the SP of Decedent. Satisfied out of portion of estate not covered by will, if none or insufficient, then rest of the property.

Exceptions:

1. Intentional and appears on face of relevant will/trust.
2. Testator provided alternatives for spouse and intent was this was in lieu of will transfer.
3. Spouse entered into valid agreement waiving right.
4. Care custodian of decedent who was a dependent adult and their marriage began while spouse provided those services, or within 90 days of when those services were last provided AND decedent dies within six months of marriage.

Question 27

Revocation by Operation of Law: Dissolution or Annulment

Answer 27

All provisions in favor of former spouse are revoked.

Question 28

Dependent Relative Revocation

Answer 28

Where you revoke will under the mistaken belief that ANOTHER disposition of your property would be effective, but it is now. Absent this mistaken belief would not have revoked will.

DPR elements:

1. Must be an alternative disposition;
2. The alternative must be INEFFECTIVE; and
3. If the revocation is a subsequent instrument, extrinsic evidence is not admissible to show the mistake

Question 29

Revival of Revoked Will

Answer 29

1. Will 1 is executed
2. Then Will 2 is executed, revoking Will 1.
3. Will 2 is then revoked.

What happens?

1. If Will 2 is revoked by physical act, extrinsic evidence can prove T’s desire to revive Will 1. (Will 1 must still be in existence).
2. If Will 2 is revoked by a later will, (Will 3), then Will 1 is not revived.

Question 30

Omitted Child

Answer 30

Applies to: Protect a child from being unintentionally disinherited. Applies where child born after execution of all testamentary instruments.

Effect: Omitted child gets an intestate share.

Does not apply where:

1. T’s failure to account for child was intentional and appears on the face of the document (extrinsic evidence is available to show a LACK of intent to disinhereit);
2. T provided for child by transfers outside of will, and intent was that this was meant to be a substitute.
3. T had (a) other children; and (b) left the estate to the parent of the omitted child.

Child born after republication by codicil is not considered omitted.

Question 31

Lapsed Gift and Anti-Lapse Statute

Answer 31

Operates to save the gift of the predeceasing beneficiary. Applies where:

(i) was kindred of the T or kindred of a surviving, deceased, or former spouse or domestic partner, and
(ii) Left descendants who survived the T.

Does not apply to contrary will provision. DOES NOT APPLY TO SPOUSES.

Question 32

Classification of Testamentary Gift

Answer 32

1. Specific, i.e., a particular item or piece of property.
2. General legacy, a general economic benefit, often a dollar amount. Can also be specific types of property that executor is supposed to purchase.
3. Demonstrative legacy, an economic benefit paid from a particular source. Any shortfall may be covered as a general legacy.
4. Residuary Estate, balance of T’s property after paying (i) debts, expenses, taxes; and (ii) specific, general, and demonstrative legacies.

Question 33

Ademption

Answer 33

Definition: Failure of a gift because the property is no longer in the T’s estate at the time of her death.

1. Applies to specific devises only.
2. Partial ademption for partially conveyed specific property.
3. Does not apply to general or demonstrative legacies. Will be satisfied by selling and/or giving other assets.

Question 34

Ademption: Testator Intent

Answer 34

We look at T’s intent when looking as to whether something is adeemed. If possible the court will try and find general or demonstrative gift. Gift that has merely changed form is not adeemed, such as proceeds from sale of a specific property.

Question 35

Ademption: Statutory Modifications

Answer 35

Notwithstanding ademption a specific devisee has the right to the following:

1. Any balance of the purchase price owing from a purchaser to the T at death by reason of sale of the property.
2. Any amount of an eminent domain award for the taking of the property unpaid at death.
3. Proceeds unpaid at death on fire or casualty insurance of the property.
4. Property owned by T at death as a result of foreclosure of the P
5. Securities in another entity resulting from the property.
6. Remaining proceeds of the sale of the T’s property paid to guardian of an incompetent T.

Question 36

Forced Share in Quasi-Community Property

Answer 36

Effect: A spouse can elect to acquire 50% of the decedent’s quasi-community property.

Quasi-Community Property: (i) all personal property wherever situated; and (ii) all California real property acquired while domiciled elsewhere that would have been community property had the decedent been domiciled in California at the time of acquisition.

Intervivos Transfer: Defeats it.

Question 37

Spouse’s Election (Widow’s Election)

Answer 37

T may require the surviving spouse to give up her half of CP in exchange for benefits under will. Must be unambiguous. Can also be required to ELECT between taking under the will or their one half share of CP.

Question 38

Effect of Forced Share

Answer 38

Spouse renounces all benefits under the will. They take from the other beneficiaries by ordinary rules of abatement (residuary, general, then specific) or pro-rata among them.

Question 39

Testamentary Capacity

Answer 39

1. Must be 18 or older.
2. Mental capacity, must understand (i) nature of his act; (ii) nature and extent of his property; and (iii) the persons who are the natural object of his bounty.
3. Addict, old, forgetful, doesn’t necessarily negate TC.
4. Adjudicated incompetent may still have TC.
5. Insane delusion can set aside the entire will.

Burden of proof on one challenging the will.

Question 40

Undue Influence

Answer 40

Mere pleading, begging, even threatening, is not sufficient. Must show:

1. influence on T;
2. Effect of said influence to overpower mind and will of T;
3. The PRODUCT of the influence was that the will would not have been executed BUT FOR the aforesaid influence.

Question 41

Undue Influence: Evidentiary Factors

Answer 41

1. T’s vulnerability;
2. Apparent authority of influencer
3. Actions and tactics of the influencer
4. Equity of the result

Question 42

Presumption of Undue Influence

Answer 42

1. Confidential relationship between T and B (e.g., attorney and T, physician and B, NOT spouse).
2. B actively participated in procuring or drafting will
3. B unduly benefits from the instrument, i.e., provisions appear to be unnatural and favor B.

The aforesaid shifts the burden of proof.

Question 43

Undue Influence: Presumption of Fraud or Undue Influence

Answer 43

By statute, CA presumes donative transfer to certain people (see below) is product of fraud or undue influence, including the:

1. Drafter of the instrument;
2. Transcriber of the will who had a fiduciary relationship with T;
3. Care custodian, if executed during provision of care or within 90 days before or afterwards;
4. Care custodian who commenced marriage/co-habitation while providing services or within 90 days after those services were last provided, if transfer occurs or instrument was executed within 6 months of marriage.

Question 44

Fraud

Answer 44

1. Fraud in factum (misrepresent what is in the document);

2. Fraud in the inducement.

Question 45

No Contest Will Clauses

Answer 45

Will be enforced unless B with reasonable cause, brings contest on the grounds of forgery, revocation, or invalid transfer to person who drafted instrument.