Wills

Question 1

Attested Will Requirements

Answer 1

A valid will requires

(1) legal capacity - a testator 18 years old or older

(2) testamentary capacity - sound mind;

(3) signed writing

(4) two witnesses

Question 2

Valid Wills Under California Law

Answer 2

Rule: a will is valid under California law if it is:

(a) valid under CA law,

(b) valid under the law of the state where it was executed, or

(c) valid under the law of the state where the testator was domiciled at the time of execution/death.

Question 3

Definition & Rule

Holographic Will

Answer 3

Definition: A holographic will is a handwritten will signed by the testator but not witnessed.

Rule: In CA a holographic will is valid if signed by the testator and all material terms of the will are in the testators handwriting. Material terms include the name of the beneficiaries and the gifts they will receive.

*Any portion not devised by the holographic will, will pass by intestacy.

Question 4

At what time are the terms of the will given effect?

Answer 4

The terms of a will are given effect at the time the will is probated or after the testators death.

Question 5

Holographic Date Requirement

Holographic Will

Answer 5

A holographic will does not need to be dated except when:

(a) there is an issue with testamentary capacity; OR

(b) there is a possibility that two or more wills should be probated which are inconsistent
* in such instance the holographic will is invalid to the extent of the inconsistency.

Question 6

Overall Rule:

Challenging the Validity of a Trust

Answer 6

Rule: A trust may be set aside by a court upon a finding of:
(a) fraud or
(b) undue influence.

Question 7

Definition & Rule

Undue Influence

Definition

Answer 7

Undue Influence occurs when a person exerts influence that overcomes a settlors’s free will and judgement.

Question 8

Common Law Presumptions

Undue Influence

Answer 8

Common law presumptions are established if (1) a confidential relationship existed between the settlor and the wrongdoer; (2) the wrongdoer actively participated in creating the trust; and (3) there is an unnatural result.
*under common law the affected provision is invalid.

Question 9

California Statutory Presumptions

Undue Influence

Answer 9

In CA, a statutory presumption of undue influence is established if the settlor provides in the trust to:

(1) the person who helped set up the trust;

(2) a care custodian of a settlor who is a “dependent adult”;

(3) a person in a fiduciary relationship with the settlor;

(4) a person who is a spouse, domestic partner, employee or related by blood to a person in one of the previous 3 circumstances; OR

(5) a partner, shareholder, or employee of the law firm in which a person who helped set up the trust or one in a fiduciary relationship with the settlor has an ownership interest.

*under CA statutory presumptions the gift to the wrongdoer lapses.

Question 10

Fraud

Answer 10

A trust is fraudulent if a person:

(1) intentionally made a misrepresentation;

(2) of material fact;

(3) in order to induce the settlor to creator the trust or change the contents of the trust; and

(4) the settlor did so.

Question 11

To have capacity to make a will the testator must satisfy four elements:

Answer 11

The testator must:

1. understand the extent of her
   property;
2. must know the natural objects of her bounty
3. must know the nature of her act (must know she is executing a will).

Question 12

What are the 5 elements to fraud?

Answer 12

1. Must be a representation
2. of material fact
3. known to be false by the wrongdoer
4. for the purpose of inducing action or inaction; and
5. in fact induces the action or inaction desired.

Question 13

What is the rule/ requirements for DRR?

Answer 13

1. If T revokes her will, or a portion thereof,
2. in the mistaken beleif that a substantially identical will or codicil effectuates her intent,
3. then, by operation of law,
4. the revocation of the first will be deemed conditional, dependent, and relative to the second effectuating T’s intent
5. If the 2nd does not effectuate T’s intent, the first (by pure legal fiction) was never revoked.

Question 14

What are the elements to incorporation by reference?

Answer 14

1. document or a writing
2. document or writing must have been in existence when the will was executed.
3. document must be clearly identified in the will
4. T must ahve intended to incorporate the doc into the will

** If you establish elements 1-3, #4 will be implied by the court.

Question 15

Is a date required on a holographic will?

Answer 15

No, but lack of date can create a problem with

1. inconsistent wills and
2. capacity

If an undated holograph is inconsistent with the provisions of another will (either a dated holographic will, a dated will, or an undated witnessed will), the undated holograph is inavlid to the extent of the inconsistency–unless the undated holograph’s time of execution is established to be after teh date of execution of the other will.

• If 2 undated holographs, then if you can't establish which one came last, niether holograph is probated to the extent of the inconsistency.

Question 16

E.g. I leave my farm to X and Y. T subsequently cancels out Y’s name. What does X take?

Answer 16

You cannot increase a co-beneficiaries gift by cancellation.
• X takes 1/2 of the farm.
• The other 1/2 goes to residuary devisees or, if
none, by intestacy

Question 17

What are the exceptions to the omitted child rules?

Answer 17

1. Omitted child receives nothing if Decedent’s failure to provide for the child in any testamentary instrument was intentional and that intention appears from the testamentary instrument.
2. At the time of execution of the testatmentary instrument, the decedent had one or more children and transferred by will or revocable inter vivos trust substantially all of his estate to the parent of the omitted child.
3. the decedent rpvodied for the child by transfer outside the testamentary instrument with the intention that the transfer is to be in lieu of any testamentary provision.

Question 18

What are the exceptions to providing an omitted spouse with a statutory share?

Answer 18

1. Decedent’s failure to provide for the spouse in any testamentary instrument was intentional and that intention appears from the T.I.
2. Decedent provided for the spouse by transfer outside of the testamentary instruments with the intention that the transfer would be in lieu of any testamentary provision.
3. Waiver
   • must be in writing, signed by the waiving spouse before or during marriage; and
   • full disclosure of decedent of decendent’s finances
   • independent counsel by the waiving spouse

*But even if no 2 & 3, can still be enforced if waiving spouse had or should have known of the decedent’s finances and the waiver was in fact fair.

Question 19

What are the 4 types of gifts? (4 classifications?)

Answer 19

1. specific devise
2. general devise
3. demonstrative devise
4. residuary devise

Question 20

What is ademption by extinction?

Answer 20

Common law: Ademption by extinction is when a specific gift fails because T did not own the property at T’s death.

California: means the same thing, but CA cares about whether the T intended the gift to fail.
• There are 3 situations where no ademption by extinction.
• Common thread is that the T did not intend the gift to fail.

Question 21

What is ademption by satisfaction?

Answer 21

T gives the beneficiary an intervivos down payment on a devise.

E.g. T executes his will leaving a $1000 devise to B. T later goest ot B and says, I’ve left you a $1000 devise in my will, but why should you wait. Here is $100 on account.”

If we conclude that the $100 is satisfication, then when T dies, B only gets $900.

Question 22

What is the rule of lapse?

Answer 22

If the beneficiary does not survive the T, beneficiary’s gift lapses, or fails. Thus, if a gift lapses, unless a contrary intent is expressed in the will, the gift falls into residue, if there is one; if it is already part of the residue, it goes to other co-residuary devisees. Otherwise, the gift goes by intestacy.

Question 23

What is CA’s anti-lapse statute?

Answer 23

Applies only if the devisee who predeceased the T was “kindred” (blood relative) of the T, or kindred of a surviving, deceased or former spouse or domestic partner of teh T, and this predeceased devisee leaves issue. In such case, the issue of that predeceased devisee will step into the shoes of that predeceased devisee.

E.g.: T makes a devise to his brother and his brother predeceases T. In the absence of a contrary provision in teh will, the gift to the brother will not lapse but go to the issue of the brother.

Question 24

What is abatement?

Answer 24

The process by which certain gifts are decreased.

Question 25

When does abatement arise?

Answer 25

When it is necessary to pay for the share of the omitted child or omitted spouse or omitted domestic partner.

When there is an ommitted child/ spouse/ DP, the gifts of the devisees have to be decreased to come up with the statutory share of the ommitted child/spouse/partner.

Question 26

Elements of Undue Influence

Answer 26

Undue influence is established when:
(1) the settlor had a weakness that made them susceptible to influence;

(2) the wrongdoer had access to the settlor and an opportunity to exert influence;

(3) the wrongdoer actively participated in drafting the will; and

(4) there is an unnatural unexpected result.

*The weakness can be mental, physical or financial.

Question 27

Surviving Spouse’s Interest in Intestate Community Property

Answer 27

Rule: the surviving spouseretains the 1/2 interest in CP held by the deceased spouse.

Question 28

Surviving Spouse’s Interest in Intestate Separate Property

Answer 28

Rule: the surviving spouse receives:
1. HALF - if the decedent is survived by only one child, the decedents of a predeceased child, or parents/siblings.
2. ONE-THIRD - if decedent is survived by more than one child or grandchildren.

Question 29

Integration

Answer 29

A will can be written on more than one piece of paper; a will consists of all the papers that were actually present at the time of execution and the testator intended to be a part of their will.

Question 30

Incorporation by Reference

Answer 30

To incorporate a document by reference:
1. it must be in existence at the time the will was executed,
2. it must be sufficiently described in the will,
3. there must be proof that the proffered document is the one descirbed in the will.

If these elements are satisfied, courts will infer that the testator intended to incorporate the documents into the will.