Wills

Question 1

Surviving spouse requirements to take intestate share

Answer 1

In intestacy, the surviving spouse must 1) be legally married to the decedent at the time of death, and 2) survive the decedent by 120 hours.

Question 2

Surviving spouse intestacy CP share

Answer 2

At death, the surviving spouse is entitled to the entire CP.

Question 3

Surviving spouse intestacy SP share

Answer 3

At death, the surviving spouse’s SP share depends on the number of surviving family members of the decedent.

Question 4

Surviving spouse intestacy SP share - no surviving relatives

Answer 4

If there are no surviving relatives of the decedent, the surviving spouse gets all of the decedent’s SP.

Question 5

Surviving spouse intestacy SP share - 1 surviving relative

Answer 5

If there is one surviving relative of the decedent, the surviving spouse gets ½ of the decedent’s SP and the other surviving relative gets the other half.

Question 6

Surviving spouse intestacy SP share - 2+ surviving relatives

Answer 6

If there are 2+ surviving relatives of the decedent, the surviving spouse gets ⅓ of the decedent’s SP and the other surviving relatives split the ⅔ SP equally.

Question 7

Per capita

Answer 7

If the surviving issue are all the same level of relation to the decedent, the property passes equally to each person.

Question 8

Per capita with representation

Answer 8

If the surviving issue are not all on the same level of relation to the decedent, the property is divided at the 1st generation in which at least one member survived the decedent. The shares that would go to the member that predeceased the decedent would go to their issue.

Question 9

Both attested and holographic wills must have what elements?

Answer 9

1) Capacity, and 2) testamentary intent

Question 10

Testator capacity

Answer 10

The testator must 1) be at least 18 years old, 2) understand their action, and 3) understand who is receiving their property.

Question 11

Testamentary intent

Answer 11

The testator must understand they are executing a will and intend for it to have testamentary effect.

Question 12

Attested will requirements

Answer 12

Attested wills must 1) be in writing, 2) be signed by the testator, and 3) witnessed.

Question 13

Attested will - witness requirement

Answer 13

The will must be signed in the joint presence of 2 witnesses. If the testator doesn’t sign in their presence, then they must expressly or impliedly acknowledge their signature to them before they sign. Witnesses must be aware that the instrument is a will. Witnesses do not need to sign in front of each other.

Question 14

Attested will - Interested witnesses

Answer 14

A witness who has a financial interest in the will is an interested witness. This creates a rebuttable presumption that the interested witness exerted undue influence over the testator. If the presumption is not rebutted, the witness only takes their intestate share.

An interested witness problem, by itself, will not render the will invalid.

Question 15

Attested will cured by codicil

Answer 15

A valid codicil executed after the original will cures any interested witness problems that existed during execution of the original will.

Question 16

Attested will - Substantial compliance

Answer 16

If a will is not executed in compliance with the law, the will is treated as if it had been executed in compliance if the proponent of the will establishes the testator’s testamentary intent in signing the will by clear and convincing evidence.

Question 17

Holographic will requirements

Answer 17

A holographic will must include 1) testator’s handwritten material provisions, and 2) signed by the testator. The material provisions are the distributions of assets.

Question 18

Codicil

Answer 18

A codicil is a supplement to a will that amends the will. Generally, a codicil must be executed with the same formalities as a will (attested or holographic).

Question 19

Republication date of codicil

Answer 19

A validly executed codicil republishes a will as of the date of the codicil.

Question 20

Codicil’s ability to cure invalid will

Answer 20

A valid codicil cures any problems that existed at the execution of the will, including an interested witness.

Question 21

Can a holographic codicil amend an attested will?

Answer 21

YES

Question 22

Will substitute via deed

Answer 22

If a grantor delivers a deed to a 3P with instructions to give the deed to a grantee upon the grantor’s death, the deed will serve as a will substitute. The deed itself must still satisfy the requirements of a valid attested will or holographic will.

Question 23

Choice of law regarding wills

Answer 23

If a will is validly executed in another state, the will is treated as valid in CA. If a will is not validly executed in another state, but the decedent is domiciled in CA and dies in CA, their will will be treated as valid if it meets the CA requirements for a valid will.

Question 24

Revocation prior to testator’s death

Answer 24

A will or codicil may be revoked in whole, or in part, at any time prior to the testator’s death by 1) subsequent writing, 2) physical destruction, or 3) operation of law.

Question 25

Revocation - Subsequent writing

Answer 25

A testator can revoke a will/codicil by executing a later will/codicil that partly or completely revokes the prior will/codicil. The revocation can be express or implied. An implied revocation can be inferred if the terms of the new will/codicil conflict with the terms of the old one.

Question 26

Revocation - Physical destruction

Answer 26

A will/codicil can be completely or partially revoked by: 1) destructive act that touches the language of the will, and 2) intent to revoke.

Question 27

Revocation - 3P destruction

Answer 27

A 3P can revoke through physical destruction of the will/codicil on behalf of the testator if it is 1) requested by testator, and 2) destroyed in testator’s presence.

Question 28

Revocation - Destruction of duplicate will

Answer 28

Destruction of an original or duplicate presumptively destroys all copies.

Question 29

Revocation - Operation of law

Answer 29

Divorce or dissolution of a marriage/domestic partnership automatically revokes all will provisions relevant to the former spouse UNLESS it can be shown that the testator intended for the will provisions to survive the divorce/dissolution. Separation only does NOT revoke the will provisions.

Question 30

Revocation of codicil

Answer 30

If a testator revokes a codicil, the original will terms will be revived and the original will terms control.

Question 31

Revival through revocation of later will/codicil

Answer 31

Revocation of a later will/codicil that revoked the original will revives the original will IF there is proof that the testator intended to revive the original will.

Question 32

Revival - Dependent Relative Revocation (DRR)

Answer 32

DRR will allow a court to revive a revoked will when the testator revoked the will under a mistaken belief of law or fact, and would not have revoked the original will but for that mistake.

Question 33

What is will construction

Answer 33

Construction is how a court determines the terms of the will and how to distribute the estate.

Question 34

Integration rule

Answer 34

Under the integration rule, a will consists of all pages that are: 1) present at the time of execution, and 2) intended to form part of the will. This can be shown by physical connection of the pages or by the ongoing nature of the will.

Question 35

Incorporation by reference

Answer 35

A writing not executed in compliance with wills formalities may be incorporated by reference if it 1) existed at the time the will was executed, 2) is intended to be incorporated, and 3) is described in the will/codicil with sufficient certainty.

Question 36

Personal property exception to incorporation by reference

Answer 36

If the writing only disposes of the testator’s personal property, a writing does not need to exist at the time the will was executed.

Question 37

Reversed incorporation

Answer 37

A validly executed codicil can incorporate an invalid prior will and make the terms of the will valid.

Question 38

Acts of independent significance

Answer 38

A will can reference events or acts that help determine where to distribute the estate.

Question 39

Types of devises

Answer 39

Specific gift
General gift
Demonstrative gift
Residuary gift

Question 40

Specific gift

Answer 40

A specific gift is an item that can be distinguished w/ reasonable accuracy from other property that is part of the testator’s estate.

Question 41

General gift

Answer 41

A general gift is those that are meant to be satisfied from the general assets of the estate (e.g., money).

Question 42

Demonstrative gift

Answer 42

A demonstrative gift is a general gift made payable out of a particular fund or source of property in the testator’s estate.

Question 43

Residuary gift

Answer 43

A residual gift is a gift of the estate remaining when all claims against the estate and all specific, general, and demonstrative gifts have been satisfied.

Question 44

Abatement

Answer 44

If the assets of the estate are insufficient to pay all debts of the testator and gifts, a court will reduce the gifts to pay the debts.

Question 45

Order of abatement

Answer 45

court will reduce the gifts, pro rata, in the order of 1) intestate property, 2) residuary bequests, 3) general bequests, and 4) specific bequests.

Question 46

Ademption by extinction

Answer 46

If a specific gift is no longer in the testator’s estate at the time of the testator’s death, courts will examine the testator’s intent at the time they disposed of the specific gift. If there is evidence that the testator still intended for the beneficiary to receive the gift the court may 1) treat the specific gift as a general or demonstrative gift, or 2) trace the specific gift to its new form.

Question 47

Lapse (wills)

Answer 47

Under CL, if a beneficiary dies before the testator, the gift to the beneficiary fails.

Question 48

Anti-lapse (wills)

Answer 48

if the beneficiary was blood-related to the testator, the beneficiary’s surviving issue will take in the beneficiary’s place.

Question 49

Class gift exception to anti-lapse (wills)

Answer 49

If the will beneficiaries are a class, only the members of the class who are alive at the time of the will execution will receive the benefit of the will.

Question 50

Ambiguities in will

Answer 50

A court will generally only look to the will itself to interpret its terms; however, extrinsic evidence may be available if there is an ambiguity in the will.

Question 51

Surviving spouse/Decedent rights regarding CP

Answer 51

At the death of one spouse/domestic partner, the surviving spouse/partner owns half of the CP and QCP. The decedent can dispose of the other half by will.

Question 52

Omitted spouse

Answer 52

An omitted spouse occurs when a marriage/domestic partnership occurs AFTER the execution of the testator’s will and the spouse is not mentioned in the will. Generally, an omitted spouse is entitled to an intestate share.

Question 53

Exception to omitted spouse intestate share rule

Answer 53

1) omission was intentional,
2) spouse was given property outside of the will in lieu,
3) spouse validly waived their right to a share, or
4) spouse was a care custodian who married a dependent adult testator while or within 90 days after providing services and the decedent died less than 6 months after marriage.

Question 54

Omitted children (wills)

Answer 54

A child omitted from the will can force an intestate share of the will assets if 1) the child is born/adopted after will is created, 2) testator mistakenly believed the child was dead, or 3) testator didn’t know the child existed.

Question 55

Exception to omitted children (wills)

Answer 55

Cannot force an intestate share if the child is either 1) provided for outside of the will, or 2) the testator had other children when the will was executed and left a substantial amount of their estate to the omitted child’s parent.

Question 56

Insane delusion

Answer 56

An insane delusion is a belief that is not reasonable or factually supported, but the testator believes it despite all evidence to the contrary. If a testator is shown to have an insane delusion, it must be shown that the delusion caused the testator to make the disposition.

Question 57

Undue influence in will execution

Answer 57

Undue influence occurs when mental or physical coercion is exerted on a testator with the intent to influence the testator that they lose their own judgment.

Question 58

4 analyses to undue influence in will execution

Answer 58

Traditional approach
CA approach
Confidential relationship presumption
CA statutory presumptions

Question 59

Undue influence in wills- Traditional approach

Answer 59

contestant must show 1) susceptibility, 2) motive, 3) opportunity, and 4) causation.

Question 60

Undue influence in wills - CA approach

Answer 60

contestant must show 1) victim’s vulnerability and whether the influencer knew or should’ve known of the vulnerability, 2) influencer’s apparent authority, 3) influencer’s actions, and 4) equity of result.

Question 61

Undue influence in wills - Confidential relationship

Answer 61

A presumption of undue influence arises when 1) principal beneficiary of the will has a confidential relationship with the testator, 2) principal beneficiary participated in executing the will, and 3) gift to beneficiary is unnatural. If the presumption arises, the beneficiary must show through clear & convincing evidence that they did not exert undue influence. If they did exert undue influence, they are only entitled to an intestate share.

Question 62

Undue influence in wills - CA statutory presumptions

Answer 62

CA invalidates any gift to 1) the person who drafted the will, or 2) the person who transcribed the will and was in a fiduciary relationship with the testator.

Question 63

Fraud in the inducement

Answer 63

Fraud in the inducement occurs when a person tricks by using fraudulent statements and representations.

Question 64

Fraud in the execution

Answer 64

Fraud in the execution occurs when the testator does not know they are creating a will or is not told of its contents.