Essay Rules

Question 1

Will Formalities

Answer 1

Valid will requires (1) testamentary intent, (2) capacity (18+ and possess a sound mind at the time of execution), and compliance (3) with will formalities=(i) in writing, (ii) signed by the testator (or by another person in the testator’s presence and at his direction, (iii) signed or acknowledged in the joint presence of at least two witnesses, and (iv) the witnesses must understand that the instrument being witnessed is the testator’s will.

Question 2

Revocation

Answer 2

A testator retains the ability to revoke his will at any time prior to his death. A will may be revoked wholly or partially in three ways: (i) by subsequent writings, (ii) by physical destruction of the will, or (iii) by operation of law. Destruction of one duplicate by the testator with the intent to revoke the instrument will revoke all duplicates of the will.

Question 3

Codicil

Answer 3

A codicil is a supplement to a will that alters, amends, or modifies a will, rather than replacing it. A codicil must be executed with the same formalities of a will.

Question 4

Revocation - Subsequent Instrument

Answer 4

T can revoke a will/codicil by executing a later will/codicil that partly or completely revoked the prior will/codicil. Oral revocations not valid. Revocation can be partial or complete. Can be express or implied by the terms of the subsequent instrument. If there are inconsistencies b/w the prior will or codicil and the subsequent instrument, the later document controls.

Question 5

Holographic codicil

Answer 5

A holographic codicil is one in which the material provisions are handwritten by the testator, who then signs the codicil. Complete formal name is not required, as long as the signature indicates his desire to sign.

Question 6

Revocation - Physical destruction

Answer 6

A will or codicil may be revoked by (1) burning any portion thereof, or by canceling, tearing, obliterating, or destroying a material portion of the will (2) with the intent to revoke it. Canceling by physical destruction requires some defacement of the language of the will/codicil.

Question 7

Revival - Republication

Answer 7

Revocation of a later will or codicil that revokes the original will revives the original will if there is proof that the testator intended to revive the original will. If the later will or codicil is revoked by physical act, extrinsic evidence of T’s intent to revive the original is admissible.

Question 8

Lapse

Answer 8

Under CL, if a beneficiary dies before the T, the gift to the beneficiary lapses (fails). Gift goes to the residue unless the will provided for an alternate disposition.

Question 9

Anti-Lapse

Answer 9

Under California’s modern anti-lapse statute, if the gift was made to a blood relative and the relative’s the issue will take the gift in her place.

Question 10

Per capita with representation method

Answer 10

if the surviving issue are all of equal degree of kinship, then the property passes per capita. If the surviving issue are of unequal degree of kinship, and the decedent dies intestate or does not specify the method of calculating shares, use per capita with rep. Divides the property equally among the first generation in which at least one member survives the decedent, with the shares of each member of that generation who does not survive the decedent passing to the then living issue of the non-living member.

Question 11

Gifts

Answer 11

Gifts may be general, specific, demonstrative, or residuary. (1) general-gift of personal property, satisfied from the general assets of his estate (2) specific-gift of property that can be distinguished with reasonable accuracy from the other property in the testator’s estate (3) demonstrative-gift that the testator intends to be paid from a particular source, but if that source is insufficient, he directs that the legacy be satisfied out of the general assets of the estate (4) residuary-legacy of the estate remaining when all claims against the estate and gifts have been satisfied

Question 12

Ademption by Extinction - Traditionally

Answer 12

If the subject matter of a specific bequest is missing, destroyed, or there is substantial change in the form of the gift, the beneficiary takes nothing. (N/a to general or demonstrative gifts). B is entitled to whatever is left of the prop or balance of the purchase price owed by the purchaser of the prop.

Question 13

Ademption by Extinction - CA

Answer 13

T’s intent at the time he disposed of the subject matter of the bequest is examined. Under “change in form doctrine” if there is evidence that T intended for B to receive the gift, the court may treat the specific gift as a general/demonstrative gift or trace the specific gift to its new form.

Question 14

Acts of independent significance

Answer 14

A will may provide for the designation of the amount of a disposition by reference to some unattested act or event occurring before or after the execution of the will or before or after the testator’s death, if the act or event has some significance apart from the will.

Question 15

Omitted spouse

Answer 15

Omitted from a premarital will. Will receive his/her intestate share unless the omission was intentional as shown in the will, the deceased spouse provided for transfer outside of the will, or he/she made a valid agreement waiving any right to share in the decedent’s estate. Entitled to (1) all CP that was not disposed of by a will/trust + all SP if no surviving lineal descendants/parents/issue of parent; (2) 1/2 SP if survived by one lineal descendant; or (3) 1/3 SP if survived by 1+ lineal descendent

Question 16

Omitted Child

Answer 16

Born/adopted after the execution of the will. Will receive intestate share unless (1) omission was intentional as shown on the face of the will (2) T had other children and left the bulk of the estate to the parent of the pretermitted child, or (3) Tprovided for the child by transfer outside of the will.

Question 17

Holographic Will

Answer 17

(1) intent, (2) capacity, (3) all the material provisions must be in the testator’s handwriting, and (4) it must be signed by the testator. Need not be witnessed or dated.

Question 18

Integration

Answer 18

Through the doctrine of integration, the will consists of all pages that are present at the time of execution and that are intended to form part of the will, which can be shown either by physical connection of the pages or by the ongoing nature of the language of the will.

Question 19

Incorporation by Reference

Answer 19

A writing may be incorporated by reference if it was in existence at the time the will was executed, is intended to be incorporated, and is described in the will with sufficient certainty.

Question 20

Undue Influence

Answer 20

Excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.

Question 21

Undue Influence - CA

Answer 21

Consider: (i) the vulnerability of the victim, (ii) the influencer’s apparent authority, (iii) the actions or tactics used by the influencer, and (iv) the equity of the result. Once a will is determined to have been the product of undue influence, it may be invalidated in whole or in part, as long as the overall testamentary scheme is not altered thereby.

Question 22

Undue Influence - Traditional Approach

Answer 22

Consider: (i) susceptibility (the testator was susceptible to being influenced); (ii) motive or predisposition (the influencer had reason to benefit); (iii) opportunity (the influencer had the opportunity to influence); and (iv) causation (the influencer caused an unnatural result)

Question 23

Undue Influence - Presumption (Confidential Relationship)

Answer 23

Arises when (1) confidential relationship to the testator, (2) participated in executing the will, and (3) the gift to the beneficiary is unnatural. B must show through clear and convincing evidence that he did not exert undue influence. If a finding of UI, B only takes intestate share.

Question 24

Interlineation

Answer 24

In CA, a writing on the face of a will can constitute both a revocation of an altered provision and a valid new disposition. Not given effect after the execution of an attested will unless they meet the requirements of a holographic codicil.

Question 25

Dependent Relative Revocation

Answer 25

DRR applies when a testator revokes a will under the mistaken belief that another disposition of property will be effective, and but for the mistake would not made the revocation. In CA, applies to revocations by subsequent instrument or by physical act. When T gives more than the original bequest, the court can infer that there was at least an intent to give the lower amount.