California Wills

Question 1

Substituted Judgment

allowing a conservator to execute a will for an incompetent person

Answer 1

• -The conservator must petition a court for approval of the will.
• -Notice must be given to the conservatee’s presumptive heirs, and beneficiaries under a prior will.
• -The court will consider (among other factors):
  
  • the wishes of the conservatee;
  • the likelihood that the conservatee would take the proposed action if the conservatee were competent to do so;
  • any known estate plan of the conservatee;
  • the conservatee’s past gifting practices;
  • the relationship between the conservatee and the prospective donees;
  • the standard of living of each prospective donee; and
  • changes in tax laws that might have motivated the conservatee to alter her estate plan.

Question 2

Mental Capacity

Burden of Proof

Answer 2

-California puts the burden of proof on the will contestant.

Question 3

Insane Delusion

Answer 3

• -The contestant must show that
  
  • (1) the testator labored under an insane delusion
    
    • If there is any factual basis for the delusion, it is not insane.
      
      • (minority approach)
  • (2) the will (or some part) was a product of the insane delusion.
    
    • The contestant must show that the insane delusion materially affected or influenced the will’s provisions.
      
      • (majority approach)

Question 4

No Contest Clauses

Answer 4

• -California, similar to a majority of states, will enforce a no-contest clause if the will contest lacks probable cause.
  
  • -California defines probable cause typically:
    
    • “Probable cause exists if, at the time of filing a contest, the facts known to the contestant would cause a reasonable person to believe that there is a reasonable likelihood that the requested relief will be granted after an opportunity for further investigation or discovery.”

Question 5

Disqualified Transferees

Answer 5

-Among the disqualified transferees are

• (1) the drafter of the will (does not have to be a lawyer),
• (2) a person who has a fiduciary relationship to the donor (such as a conservator or trustee) AND who transcribes the will or “caused it to be transcribed,”
  
  • direct involvement in transcription, such as directing another person to transcribe the document
• (3) a care custodian of a dependent adult who is the transferor.

Question 6

Exceptions to disqualified transferees

Answer 6

• (1) the donor is related by blood or marriage within four degrees (or domestic partnership or cohabits with the donee) to the donee;
• (2) or the will is reviewed by an independent attorney who
  
  • (i) counsels the donor about the nature of the gift,
  • (ii) attempts to determine if the gift is the product of fraud, duress, or undue influence, and
  • (iii) signs a certificate certifying his independent review.
• (3) or a court determines that the donee has shown by clear and convincing evidence that the gift was not the product of fraud, duress, or undue influence.
  
  • This third exception does not apply to a drafter.

Question 7

In California, you can prove Undue Influence by the following 2 approaches

Answer 7

(A) a presumption of undue influence approach or

(B) an indicia of undue influence approach.

Notice, there is a great deal of overlap between the two. (If you can prove one, you can probably prove the other.) Courts tend to focus on the presumption approach.

Question 8

Presumption of Undue Influence test

Answer 8

IF -

• (1) a confidential relationship exists between the decedent and the beneficiary
• (2) the beneficiary actively participated in procuring the execution of the will, and
• (3) the beneficiary unduly profits from the will (= unnatural),

THEN – a presumption of undue influence arises and the beneficiary has the burden to show that the will was freely made.

Question 9

Indicia of Undue Influence test

Answer 9

-The court looks at several nonexclusive factors:

• (1) unnatural disposition
• (2) is there a variance between the terms of the will and the expressed intentions of the testator;
• (3) Opportunity to exert influence
• (4) Susceptibility of the testator
• (5) Was the beneficiary active in procuring the execution of the will

These factors must be considered in combination.

Question 10

Choice of Law

Answer 10

-California provides that a will is valid if its execution complies with

• California law OR
• complies with the law at the time of execution where the will is executed OR
• complies with the law where the testator is domiciled, has a residence or is a national at the time of execution or at the time of death.

Question 11

Witnessing a Will

Answer 11

-In addition to requiring a writing and the testator’s signature, California has an unusual witnessing requirement:

• “The will shall be witnessed by being signed by at least two persons each of whom
  
  • (1) being present at the same time, witnessed either the signing of the will or the testator’s acknowledgement of the signature or of the will and
  • (2) understand that the instrument they sign is the testator’s will.”

-California also requires that the witnesses must sign before death of the testator.

Question 12

Interested Witnesses

Answer 12

There is a presumption that the interested witness procured the gift by duress, fraud, or undue influence.

• If he fails to overcome that presumption, he takes a portion that does not exceed intestacy

Question 13

Harmless Error

Answer 13

-Cal. Prob. Code 6110(c)(2) provides that

• if a will is not executed with the formalities prescribed in the code, “the will shall be treated as if it was executed in compliance if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.”
• Thus, California’s harmless error rule requires a writing and a signature; it is largely limited to attestation errors.

Question 14

Holographic wills

Answer 14

• Valid if the signature and the material provisions are in the handwriting of the testator.
• intent: “any statement of testamentary intent contained in a holographic will may be set forth either in the testator’s own handwriting or as part of a commercially printed form will
• extrinsic evidence: admissible to determine whether a document constitutes a will … or to determine the meaning of a will or a portion of a will if the meaning is unclear
• No date: inconsistent portions with another will are not valid. If testamentary capacity is in question, will is not valid unless capacity can be established

Question 15

Revocation

Answer 15

• If
  
  • the testator’s will was last in the testator’s possession,
  • the testator was competent until death, and
  • neither the will nor a duplicate original of the will can be found after the testator’s death,
• it is presumed that the testator destroyed the will with intent to revoke it.”

So, in California, if a duplicate can be found, - even if the duplicate was in someone else’s possession - the presumption does not arise.

Question 16

Lost Will

Answer 16

-In most states, a lost will, not revoked in compliance with applicable formalities, can be probated if its contents can be proved by clear and convincing evidence. California requires only that the terms of the lost will be proved by a preponderance of the evidence.

Question 17

Cancellation

Answer 17

-Traditionally, words or marks of revocation (cancellation) must touch the words of the will. However, California’s probate code does not expressly require that cancellation touch the words of the will. There are no California cases that directly address the issue.

Question 18

Revival of Revoked wills

Answer 18

• Generally, upon revocation of Will #2, Will #1 is revived if T so intends.
• Details:
  
  • -If T revokes Will 2 by physical act, Will 1 stays revoked (in part or completely) “UNLESS it is evident that the testator intended the first will to take effect as executed.”
  • -If T revokes Will 2 by a third Will, Will 1 stays revoked (in part or completely) “except to the extent it appears from the terms of the third will that the testator intended the first will to take effect.”

Question 19

Revocation upon divorce

Answer 19

California’s statutes do not expressly revoke gifts to step-relatives, but courts have established presumption that divorce revokes gifts to step-relatives.

Question 20

Incorporation by reference

Answer 20

California requires

• a writing in existence at execution of the will,
• will manifests intent to incorporate the document, and
• will sufficiently describes the document to permit its identification

Question 21

Tangible property list

(incorporation by reference)

Answer 21

California requirements:

• a will refers to the writing,
• the writing describes the items and recipients with reasonable certainty, and
• the writing is dated and either in the hand of the testator or signed by the testator.
  
  • BUT – if the document is not dated or signed or in the hand of T, evidence may be introduced to show intent
• Limitations: The total value of tangible property identified in the writing may not exceed $25,000.
  
  • Also, if any particular item is valued at more than $5,000, it cannot be passed under this section. (It falls into the residue of the estate.)
    
    • In such a case, the value of the item that falls into the residue does not count against the $25,000 total limit.

Question 22

Acts of Independent Significance

Answer 22

A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will

• The acts and events may occur before or after the execution of the will or before or after the testator’s death.
• The execution or revocation of a will of another person is such an event.

Question 23

Intestacy

The spouse’s share

Answer 23

• community property
  
  • surviving spouse takes all of the decedent’s half of the community property. (The survivor already owns the other half of the community property.)
• separate property
  
  • The spouse gets all if D left no issue, parent, or issue of a parent.
  • spouse gets ½ where D left
    
    • only 1 child or only the issue of 1 deceased child OR
    • where D left no issue but left a parent or issue of a parent.
  • spouse gets 1/3 where the D left
    
    • more than one child, OR
    • one child and the issue of one or more deceased children, OR
    • the issue of two or more deceased children.

Question 24

Intestacy

If no surviving spouse

Answer 24

• parents- If no issue, to the decedent’s parent or parents. -
• siblings/nieces- If no issue or parent, to the issue of the decedent’s parents. -
• grandparents/aunts/cousins- If no issue, parent, or issue of parents, to the decedent’s grandparents or (if no surviving grandparent) the issue of the decedent’s grandparents. -
• step-children- If none of the above, but the decedent is survived by issue of a predeceased spouse, to those issue of a predeceased spouse. -
• next-of-kin- If none of the above, to the next of kin
  
  • (so California switches to a degree of kinship system for collateral taking after the second line). -
• If none of the above, but the decedent is survived by the parents of a predeceased spouse or the issue of those parents, to the parent, or if both parents are dead, to the issue of those parents.

Question 25

Intestacy

May a foster child take as a child of the decedent?

Answer 25

In California, a foster child or stepchild can take as a child of the decedent if

• (i) the relationship began during the foster/step-child’s minority and continued throughout the parties’ joint lifetimes; and
• (ii) it is established by clear and convincing evidence that the foster parent or stepparent would have adopted the person but for a legal barrier.
  
  • The legal barrier to adoption must have continued until death.

Question 26

Intestacy

Representation- Modern Per Stirpes

Answer 26

California uses the modern per stirpes method:

• 1) Division into shares begins at the highest generational level where one or more descendants is alive.
• 2) Shares go to
  
  • a) the living and
  • b) the dead with living descendants.
  • c) No share goes to any dead with no living descendants.
• 3) Takers take as representatives of their predeceased ancestor the share that the predeceased ancestor would have been entitled to take had he survived.

Question 27

Simultaneous death

Answer 27

• intestacy
  
  • requires survivorship by 120 hours (5 days) to take by intestacy (unless application of this section would result in escheat to the state)
• probate
  
  • Most statutes do not apply a 5-day survival period. For example, CPC section 220 provides “[I]f the title to property or the devolution of property depends upon priority of death and it cannot be established by clear and convincing evidence that one of the persons survived the other, the property of each person shall be administered or distributed, or otherwise dealt with, as if that person had survived the other.”

Question 28

Advancements

Answer 28

• California presumes that a lifetime gift is not an advancement.
• California will find an advancement only if the donor so declares in a writing or the donee acknowledges in writing at any time.
• California applies the advancement doctrine to any heir, not just a child.

Question 29

Slayer / Bad actor

Answer 29

• California has a statute that precludes one who “feloniously and intentionally” kills the decedent from inheriting from the decedent.
  
  • California treats the killer as predeceasing the decedent and does not apply the anti-lapse statute to the killer’s gift. A final conviction is conclusive proof. Otherwise, a court decides based on preponderance of the evidence.
• California bars parents who abandon the child and children who abuse the parent from taking in intestacy from the other.

Question 30

Disclaimer

Answer 30

• California allows disclaimer within a “reasonable time after the person able to disclaim acquires knowledge of the interest.”
  
  • A disclaimer filed within 9 months of the decedent’s death is conclusively presumed to be reasonable. -
• California has a safeguard to avoid manipulation of the modern per stirpes intestacy scheme:
  
  • California generally treats the disclaimant as having predeceased the decedent.
  • BUT – CPC 282 provides that the disclaimant “is not treated as having predeceased the decedent for the purpose of determining the generation at which the division of the estate is to be made …”

Question 31

Lapse

Answer 31

• California’s anti-lapse rule applies to both wills and revocable trusts.
• California’s anti-lapse statute is very broad.
  
  • It covers gifts to “kindred” of the transferor or kindred of a spouse, former spouse, or deceased spouse of the transferor.
  • Notice – it does not cover a gift to the spouse. Thus, California’s anti-lapse statute covers gifts to anyone remotely connected by blood or marriage to T, except for gifts to T’s spouse
  • applies to a transferee under a class gift “unless the transferee’s death occurred before the execution of the [will or revocable trust] and that fact was known to transferor when the instrument was executed.”
  • Transferee here means kindred or kindred of a surviving, deceased, or former spouse
• Words of survivorship such as “to X if he survives me” are sufficient to preclude application of the antilapse statute

Question 32

No Residue of a Residue Rule

Answer 32

California has abolished the no-residue-of-a-residue rule.

Question 33

Ademption

Answer 33

California has an identity theory of ademption but has a number of intent-based doctrines/exceptions:

• Outstanding balance doctrine:
  
  • In certain instances, the devisee of a specific piece of property is entitled to an outstanding balance owed when the property has left the estate and the gift would otherwise adeem.
  • balance of a purchase price
  • unpaid eminent domain award
  • unpaid fire or casualty insurance
• transfers by a conservator
  
  • transferee has the right to a general pecuniary gift equal to the net sale price of, or the amount of the unpaid loan on, the property
  • Does not apply if the conservatorship is terminated and the donor survives the termination by one year
    *

Question 34

California’s order of abatement

Answer 34

• intestate property, -
• residuary gifts, -
• general gifts to persons other than the transferor’s relatives, -
• general gifts to the transferor’s relatives, -
• specific gifts to persons other than the transferor’s relatives, -
• specific gifts to the transferor’s relatives. -

Note – relative has the odd meaning of anyone who might take by intestate succession “if the transferor died intestate and there were no other person having priority.” This means anybody who might be an intestate taker under any family tree scenario.

Question 35

Satisfaction

Answer 35

California’s satisfaction statute is essentially identical to the UPC’s. It requires intent to satisfy to be put in writing – either contemporaneous writing by the testator or an acknowledgment at any time by the donee.

(Just like with advancement.)

Question 36

Extrinsic Evidence

Answer 36

• Extrinsic evidence is ALWAYS admissible to determine whether words of the will are reasonably capable of having more than one meaning
  
  • there is no “plain meaning”
• If the extrinsic evidence shows that the words used by T are “reasonably susceptible” of more than one meaning
  
  • extrinsic evidence relevant to prove any such meaning is admissible.
• If the words of the will are not reasonably susceptible of more than one meaning,
  
  • no evidence may be admitted to show that the words used have an intention different from the intention expressed by the words

Question 37

Reformation of a will for mistakes

Answer 37

The California Supreme Court has held “that the categorical bar on reformation of unambiguous wills is not justified and that reformation is permissible if clear and convincing evidence establishes an error in the expression of the testator’s intent and establishes the testator’s actual specific intent at the time the will was drafted.”

Question 38

Protection from disinheritance

Migrating couples (to California)

Answer 38

• The spouse who survives gets one-half of the decedent’s quasi-community property
• The property still is treated as separate property during life of both spouses;
  
  • also, if the non-owning spouse dies first, she cannot devise any part of the property—she has only survivor rights (just as with an elective share)

Question 39

Omitted spouse doctrine

Answer 39

If the decedent spouse failed to provide in a will or revocable trust for the decedent’s surviving spouse who married the decedent after execution of all of the decedent’s wills and trusts, the omitted spouse shall receive

• (a) the ½ of the community property that belonged to the decedent,
• (b) the ½ of the quasicommunity property that belonged to the decedent, and
• (c) the share of the separate property that the surviving spouse would have taken in intestacy “but in no event is the share to be more than ½ the value of the separate property in the estate.”

Question 40

When the surviving spouse does not take an “omitted spouse share”

Answer 40

The surviving spouse does not take an omitted share if

• (a) the decedent’s failure to provide for the spouse in the decedent’s will or revocable trust was intentional and that intention appears from the will or trust;
• (b) the decedent provided for the spouse outside of his will or trust and the intention that the nonprobate transfer be in lieu of a gift by will or trust “is shown by statements of the decedent or from the amount of the transfer or by other evidence;” or
• (c) the spouse made a valid agreement waiving the right to share in the decedent’s estate.”

Question 41

Where does the omitted spouse’s share come from?

Answer 41

• Intestate property first
• then the will and trust beneficiaries have their gifts abate in proportion to the value of their gift at the time of the decedent’s death.

Question 42

Unintentional Disinheritance of a Child:

Answer 42

• California’s principal pretermitted heir statute applies only to a child born after execution of all of the decedent’s wills and trusts.
• The pretermitted child gets an intestate share

Question 43

A child does not take a pretermitted share if

Answer 43

• (a) the decedent’s failure to provide was intentional
  
  • and that intention appears from the testamentary instruments
• (b) the decedent had one or more children and devised substantially all the estate to the other parent of the omitted child;
• (c) or the decedent provided for the child by transfer outside of the estate

Question 44

accidentally omitted living child

Answer 44

Child receives intestate share

If, at the time of the execution of all of the decedent’s testamentary instruments [meaning wills and trusts] effective at the time of the decedent’s death, the decedent failed to provide for a living child solely because the decedent believed the child to be dead or was unaware of the birth of the child, the child shall receive a share in the estate equal in value to that which the child would have received if the decedent had died without executing any testamentary instruments.”