Practice

Question 1

2 Ways that Property will be Treated as an Advancement

Answer 1

(1) Donor Contemporaneous Writing: Decedent declares the gift is an advancement against the heir’s share at the time the gift is made in writing; or (2) Heir Acknowledgement at any Time in Writing: Heir acknowledges in writing that the value of gift is an advancement on his/share of the estate.

Question 2

When recipient predeceases Decedent, Does an advancement count against isssue

Answer 2

No

Question 3

Simultaneous Deaths Wills, Intestancy and husband & wife

Answer 3

Simultaneous Deaths 6403 Intestate succession- If it cannot be established by clear and convincing evidence that a person who would otherwise be an heir has survied the decedent by 120 hours than it is deemed that the person failed to survie the decedent. Predeceased. (DOes not apply if it would escheat to the estate). Will: clear and convincing evidence that the person survived the other then property shall be distributed. Need to survive by 1 millisecond CPC 220: for the will of A, we treat that A survived. For the will of B, we treat as B survived. (this rule does not apply to 6403 above and 103 below-from section 221) Husband and Wife: if it cannot be established by clear and convincing evidence that one spouse survived the other, each estate receives ½ of the CP and QCP (Probate Code 103)

Question 4

Slayer Doctrine and do issue take (wills & intestancy). Burden of proof. Expressed Gift over in a will. Final Judgment. Final Judgment

Answer 4

Slayer Doctrine – CPC 250-251: A person who intentionally and feloniously kills the decent is not entitled to take and is treated as having failed to survive the decedent (skips slayer and passes to slayer’s children). Killer Treated as Predeceasing Decedent: (1) A person who feloniously AND intentionally kills the decedent; Voluntary manslaughter counts, involuntary would not (no intent) – need both elements. (2) Is NOT entitled to property in: (1) A will or property that passes through intestacy; OR (2) Decedent’s quasi-community property that would otherwise pass to the killer. (3) And the killer is treated as predeceasing the decedent. Rules of intestacy and wills then apply (See below to see how property passes). Burden of Proof Required to Show Felonious and Intentional: by a preponderance of the evidence. Thus, can still be treated as predeceased even if not criminally guilty. Burden of proof is on party seeking to establish that killing was felonious and intentional. CPC 254(a): A final judgment of conviction of felonious and intentional killing is conclusive (state found you guilty beyond a reasonable doubt). What to do with Property that Otherwise Would Have Gone to Killer: If Killer was Named in Decedent’s Will/Trust: Killer and Issue do not take: CA Anti-lapse rule does not apply, wiped out of will/trust. Anti-lapse Doctrine: Where individual is listed in a will as beneficiary but predeceases the testator, anti-lapse rule presumes that testator would want property to pass to beneficiaries issue even if not named in the will. Example: Killer kills D, his mother, intentionally and feloniously. D’s will says “I give all my prop to all my sons.” Anti-lapse rule would not apply since killer killed, and his issue are not named in the grant. Expressed Gift Over: Killer’s issue will take. Where the killer’s issue is listed as a beneficiary in the decedent’s will, killer’s issue will take. Anti-lapse rule is not needed here. Example: Killer kills D, his mother, intentionally and feloniously. D’s will says “I give to all my sons, and if they do not survive me, to their kids.” If Decedent Dies Intestate: Rules of Intestacy Apply: Since slayer is treated as predeceased, his issue will step into his place. § 254 – Final Judgment As Conclusive Evidence o (a) A final judgment of conviction of felonious and intentional killing is conclusive for purposes of this part. o (b) In the absence of a final judgment of conviction of felonious and intentional killing, the court may determine by a preponderance of evidence whether the killing was felonious and intentional for purposes of this part. The burden of proof is on the party seeking to establish that the killing was felonious and intentional for the purposes of this part.

Question 5

Doctrine of antilapse What needs to be satisfied What tipe of relationship

Answer 5

Doctrine of Anti-Lapse: **Anytime see a lapse, ask whether anti-lapse doctrine applies. If predeceased beneficiary is within a designated degree of relationship (in CA, “kindred”) and leaves issue behind before predeceasing T, rebuttable presumption arises that T would want gift to pass to predeceased beneficiary’s issue absent clear contrary intention.

A gift will be saved if all of the following are satisfied (i.e. rebuttable presumption arises): (1) A lapse or void occurs; (2) The proposed transferee stands within a specified relationship with the transferor; (3) The proposed transferee leaves issue; and (4) No express intent to the contrary (contained in will itself).

Rebuttable Presumption – Contrary Language: Doctrine of anti-lapse may only be rebutted if contrary language regarding the disposition of the property is expressed in the instrument. Contrary Language Example: CA has recognized the following as sufficient contrary language: “if he survives me…” or “to my living siblings”. Ramifications of Expressed Contrary Language: Anti-lapse does not apply, will dispose of property as desired in will. Lapse or Void: Applies to actual as well as hypothetical death – where beneficiary is treated as predeceasing. 1) Kindred of the transferor; OR I.e. shares a drop of related blood with transferor Adopted / half-blood = sufficient. (2) Kindred of surviving, deceased, or former spouse of transferor. Note: A current spouse = not kindred.

Question 6

Elder abuse and elements

What Standard

Answer 6

Elder Abuse Elder Abuse Rule (CPC 259): Treated as Predeceasing Elderly, will not Inherit: Any person shall be deemed to have predeceased a decedent when it has been proven, by clear and convincing evidence that the person is liable for physical abuse, neglect, or fiduciary abuse of the decedent, who was an elder or dependent adult. Individual treated as predeceasing a decedent where all of the following apply:

(1) Clear and Convincing Evidence of Abuse: Proven by clear and convincing evidence that the individual is liable for physical abuse, neglect, or financial abuse against the decedent, an elder or dependent adult. (
2) Bad Faith Action: Individual in question is found to have acted in bad faith.
(3) Reckless/Malicious/Fraudulent Action: Individual acted reckless, fraudulent, oppressive, or malicious in the commission of any act in question against the decedent.
(4) Decedent Unable to Manage Finances: At the time the acts occurred, and thereafter until the time of decedent’s death, decedent was:
(1) Substantially unable to manage his or her finances; or (2) Substantially unable to resist fraud or undue influence. Ramifications of All Elder Abuse Elements Being Met: Individual treated as predeceasing the decedent and will not receive anything from decedent’s will, trust, or through intestacy

Question 7

Parental Neglect elements

Answer 7

When Parent Does NOT Inherit from or through child: A parent does not inherit from and through a child in the event of intestacy (child predeceases parent) where any of the following are met:

(1) Termination/Not Reestablished; or

Parent’s parental rights terminated and were not judicially reestablished.

Note: Occurs where C terminates parental rights in sever circumstances.

(2) No Acknowledgement; or

Parent did not acknowledge the child.

(3) Leaves/Minority/7+ Years with Intent to Abandon.

Parent leaves child:

(1) During the child’s minority,
(2) Without attempt to support for or communicate with the child,
(3) Leaves for at least seven consecutive years continuing until the end of the child’s minority,
(4) With the intent of the parent to abandon the child.

Presumptive Intent to Abandon: Where parent fails to provide support or communicate during prescribed period, there’s a presumption of intent to abandon.

CPC 21115: For natural children to be considered an heir of their natural parent in somebody else’s will:

Where transferor is NOT the natural parent (aunt, uncle, friend, etc.): A person born to the natural parent shall not be considered the child of the natural parent unless:

(1) The child lived, as a minor, as a regular household member with
(2) The parent’s parent, brother, sister, spouse, or surviving spouse
i. e. Where a transferor is not a natural parent, will only be considered an heir in somebody else’s will of natural parent who can take in intestacy/will (on behalf of natural parent) if the natural child lived, as a minor, with any of the above.

But still an heir in the natural parent’s will.

Question 8

Disclaimer

Disclaimer for division

Answer 8

CPC §282: unless the donor provides for a specific disposition of the property in the event that someone disclaimed, the interest disclaimed shall descend as if the disclaimant had predeceased the creator of the interest.

A disclaimer relates back to the date of the death of the creator f the interest BUT (as of Jan. 1, 1985), the disclaimant is not treated as having predeceased the decedent for the purpose of determining at which generation the division of the state is to be made under intestacy division or advancements for advancements, you cannot disclaim to get rid of your advancement and give to your kids!

Hypo: M has children A and B. A has child C. B has 9 children. A dies and then M dies intestate. in CA, its per capita distribution therefore ½ goes to be and ½ to A or A’s issues, i.e. C. What if B disclaims? then it would be divided into 10 shares therefore, CPC §282(b)(1) makes it so that we do not treat disclaimant as predeceased for purpose of generation division Why would you disclaim? Hypo: H married W and has Child. All of their property is SP and it was mostly H’s. H dies first. When H dies intestate, W gets 50% and C gets 50%. W cannot afford anything b/c of this. C, who is a rich adult, can disclaim it and assets will go all to W. If he had given mom a gift, it would be taxed

Question 9

Spousal Waiver Read where it applaies What does a waiver of all rights do Way in which a waiver is not valid, and a way that it can still be

Answer 9

146 (b(Except as provided in subdivisions (c) and (d) of Section 147, unless the waiver specifically otherwise provides, a waiver under this chapter may not be altered, amended, or revoked except by a subsequent written agreement signed by each spouse or prospective spouse. (might be more) Summary

The waiver must be in writing and must be signed by the surviving spouse. [Prob. Code, § 142, subd. (a)] The waiver may be signed before or during marriage. A waiver is subject to the same defenses as enforcement of a contract. However, lack of consideration is not a defense, nor is minority a defense where the parties marry. [Prob. Code, § 142, subd. (c)] The waiver is also subject to the defenses of lack of capacity to contract other than because of minority, and of lack of consent because of duress, menace, fraud, undue influence or mistake. [Law Revision Commission comments to Prob. Code § 142]

A valid waiver is enforceable unless the surviving spouse proves either that [Prob. Code, § 143, subd. (a)]: (1) a fair and reasonable disclosure of the property or financial obligations of the decedent was not provided to the surviving spouse before signing the waiver, unless the surviving spouse waived the disclosure after advice by independent legal counsel; or (2) the surviving spouse was not represented by independent legal counsel at the time of signing the waiver. Although a waiver may not meet the requirements of Prob. Code § 143,

it may still be enforceable under the provisions of Prob. Code § 144. A waiver is enforceable if the court finds either that [Prob. Code, § 144, subd. (a)]: (1) at the time of signing, the waiver made a fair and reasonable disposition of the rights of the surviving spouse; or (2) the surviving spouse had, or reasonably should have had, an adequate knowledge of the property and financial obligations of the decedent and the decedent did not violate his or her fiduciary duty to the surviving spouse under Fam. Code § 721, subd. (b).

Question 10

Conditional gifts adn negative disinheritance

Answer 10

In CA there is no negative disinheritance Conditional Gifts: The testator may attempt to impose various restrictions on testamentary gifts A will may be expressly conditional upon the happening of a certain event (CPC § 6105) Negative Bequest: while you can disinherit a child (by not including them in your will), you cannot control the property that passes by intestate succession. The disinherited child is still eligible to take by intestate succession No Contest Clause: a clause in a will that denies some benefit to a person who contest the will: generally enforced by courts. Only effective if the person has been given a substantial benefit in the will! Restraint on Alienation: generally cannot prevent the owner of an interest in property from further transferring the interest Hypo: M has children A and B. A has child C. B has 9 children. A dies and then M dies intestate. in CA, its per capita distribution therefore ½ goes to be and ½ to A or A’s issues, i.e. C. What if B disclaims? then it would be divided into 10 shares therefore, CPC §282(b)(1) makes it so that we do not treat disclaimant as predeceased for purpose of generation division Why would you disclaim? Hypo: H married W and has Child. All of their property is SP and it was mostly H’s. H dies first. When H dies intestate, W gets 50% and C gets 50%. W cannot afford anything b/c of this. C, who is a rich adult, can disclaim it and assets will go all to W. If he had given mom a gift, it would be taxed

Question 11

Choice of law will

Answer 11

Choice of law provisions state that a will is valid in the place and time of execution (thus a valid holographic will can be probated in a non-halographic state) CA: will is valid in CA if executed 1. according to CA law 2. the law of the state where executed or 3. the law of the place where at the time of execution or death the testator is domiciled

Question 12

What kind of compliance state is California for Wills

Answer 12

Strict compliance with with exceptions

Question 13

Signature Requirement Delayed attestation Harmless error witnessing of signature

Answer 13

Signature Requirement Common Law: anything you intend to be your will is your will Cal Civ. Code §14: in order for a mark intended to be a signature to be valid, there must be witness that views testator make mark witness must write testators name under mark witness must sign name as witness Rule: interrupted signature is not a signature (unless abbreviation is voluntary) Order of Signing: Who Signs First? Can you witness an act that hasn’t happened? NO—Testator must sign first! *2 witnesses must be present @ same time to witness testator’s signature OR 2 witnesses must be present for acknowledgment NOT: one witness present for signature and one witness for acknowledgement after other witness signed Modern approach: order of signing does not matter so long as signing of everyone occurs in one signing ceremony (with nobody leaving during it) Subscription: Hypo: will is typed & witnesses signed. At the bottom, there was handwritten text saying “I give $10k to LLS.” CL Rule: whatever was under witness’s signature was not part of the will b/c it wasn’t “witnessed” CA Rule: subscription (signing at foot) is not required but court will not let something put into will after witnesses have signed—witnesses have to testify that the addition to the will was witnessed by them Harmless Error & Signature Requirement: Hypo: Prof. brings will to class & signs it on the board. He says we will sign as witnesses next class. He dies on his way home. What happens? CA—delayed attestation does not apply if will is not signed before the Testator’s death CPC §6110: if you can prove by cl. & conv. evidence that Prof. intended it to be his will at the time he signed…the witness req. can be waived Did Prof. intend it to be his will? No, he intended it to be a will when he came back and had the class sign; do we say b/c he is a law prof that this shows he knew will was invalid w/out witnesses and therefore that’s why he said he would bring it back (b/c he intended the later will to be is will)? What if Prof. is a bagger at the market and has a will and went to a bar to sign in front of witnesses; he didn’t have them sign but he said he’d come back. He dies on the way home. Do we infer (b/c he doesn’t know any better) that he intended it to be his will when he signed it at the bar? Conclusion: these hypos illust. that intent is difficult to prove!!

Question 14

formalities of will + harmless error

Answer 14

Harmless Error Rule: if there is clear and convincing evidence that testator intended it to be his will ,then the req.’s don’t matter (can overlook any statutory defect) CPC §6110: req’s Writing✓ Signed by T or by someone else in T’s presence & at T’s direction (or conservator acting on your behalf @ your direction)✓ Signed by witnesses during T’s life✓ delayed attestation doctrine: so long as memory of the events has not dimmed, that is okay! i.e. okay for witnesses to sign later so long as witnesses sign before testator dies—the limit to delayed attestation=death of the testator ex. in one CA case, an 8 year delay was okay 2+ witnesses✓ Present at the same time✓ *one-sided presence: CA req’s witnesses to be there when T signs but they do not need to be there to see each other sign Who must witness T sign or acknowledge✓ And witnesses must understand that it is T’s will that he is signing✓ *contrast to English Wills Act: signature does not need to be at foot of will; witnesses do not have to see each other sign CA reduces the number of requirements CPC §6110 (c)(1): except as provided in paragraph (2), the will shall be witnessed by being signed, during the T’s lifetime each of whom being present at the same time, witnessed the signing of the will or the T’s acknowledgment understand that the instrument they sign is the testator’s will CPC §6110(c)(2): if a will was not executed in compliance w/ paragraph (1), the will shall be treated as if it was executed in compliance w/ that paragraph if the proponent of the will establishes by clear & convincing evidence that, at the time the testator signed his will, the testator intended the will to be his will *this is the harmless error rule applied to the witness requirement! there is NO exception if there is no signature or no writing Estate of Stoker: Facts: S had estate plan in place which left lots of his estate to his girlfriend; they broke up; S had friends over and asked neighbor to write down his new will intentions “I Steve Stoker, revoke the 1997 trust and my girlfriend and ex-wife get nothing and my kids get everything;” S then peed on the old will and threw it out; Ex-gf and ex-wife contested the will replacement Was this a valid will? Court said yes! writing✓ signed✓ witnesses✗ there were witnesses but no witnesses signed the will BUT §6110(c)(2) applies—as long as there is clear and convincing evidence, this is enough

Question 15

pressence requirement

Answer 15

Conscious Presence: requires witnesses to use of all senses—totality of all senses/understanding of what is going on around them it is substantial compliance w/ line of sight rule (softens rigidity of line of sight) *CA rule

Question 16

Are electrnonic wills ok

Answer 16

No

Question 17

Signature Requirement Interrupted signature Order of singing Subscription Delayed Attestation Harmless error Witness requirement and burden

Answer 17

Signature Requirement Common Law: anything you intend to be your will is your will Cal Civ. Code §14: in order for a mark intended to be a signature to be valid, there must be witness that views testator make mark witness must write testators name under mark witness must sign name as witness Rule: interrupted signature is not a signature (unless abbreviation is voluntary) Order of Signing: Who Signs First? Can you witness an act that hasn’t happened? NO—Testator must sign first! *2 witnesses must be present @ same time to witness testator’s signature OR 2 witnesses must be present for acknowledgment NOT: one witness present for signature and one witness for acknowledgement after other witness signed Modern approach: order of signing does not matter so long as signing of everyone occurs in one signing ceremony (with nobody leaving during it) Subscription: Hypo: will is typed & witnesses signed. At the bottom, there was handwritten text saying “I give $10k to LLS.” CL Rule: whatever was under witness’s signature was not part of the will b/c it wasn’t “witnessed” CA Rule: subscription (signing at foot) is not required but court will not let something put into will after witnesses have signed—witnesses have to testify that the addition to the will was witnessed by them Harmless Error & Signature Requirement: Hypo: Prof. brings will to class & signs it on the board. He says we will sign as witnesses next class. He dies on his way home. What happens? CA—delayed attestation does not apply if will is not signed before the Testator’s death CPC §6110: if you can prove by cl. & conv. evidence that Prof. intended it to be his will at the time he signed…the witness req. can be waived Did Prof. intend it to be his will? No, he intended it to be a will when he came back and had the class sign; do we say b/c he is a law prof that this shows he knew will was invalid w/out witnesses and therefore that’s why he said he would bring it back (b/c he intended the later will to be is will)? What if Prof. is a bagger at the market and has a will and went to a bar to sign in front of witnesses; he didn’t have them sign but he said he’d come back. He dies on the way home. Do we infer (b/c he doesn’t know any better) that he intended it to be his will when he signed it at the bar? Conclusion: these hypos illust. that intent is difficult to prove!!

Question 18

Witness Requirement: Delayed attestation Interested Witnesses CA rule Misdescription

Answer 18

Witness Requirement Delayed attestation: OK for witnesses to sign after T does so long as T is still alive when will is signed Interested Witnesses: If witness had financial interest in will, they will testify that will is valid & they can’t be believed To deal w/ interested witnesses, 3 approaches: Invalidate: if one witness is disqualified b/c interest, will is invalid b/c not enough witnesses to meet requirement Invalidate interested witness’s portion of will Purge: Only if amount witness would take under the will is more than he will get in intestacy, court will purge whatever excess witness got under the will problem: this doesn’t do anything for friends who get nothing in intestacy CPC §6112: rebuttable presumption of bad act on part of interested witness unless there are at least 2 other subscribing witnesses to the will who are disinterested, if a will makes a devise to an interested witness, there is a rebuttable presumption that the witness procured the devise by duress, menace, fraud, or undue influence only will purse amount interest witness got that was in excess benefit of an earlier will (or what the interested witness would get in intestacy if no will) ex. Will #1 gives neighbor $100,000. Will #2, witnessed by neighbor, gives neighbor $200,000. Under CA, purge only the excess $100,000. if the neighbor had gotten $200,000 in Will #1 and only $100,000 in Will #2, then he would just get what Will #2 gives him Misdescription Doctrine (doctrine of construction): ex. “I give my house at 1331 Mockingbird Lane to LLS.” Problem: Lawyer finds out that testator doesn’t own it; however, he owns home at 1313 Mockingbird—does this mistake invalidate gift to LLS? court will strike the wrong description so that LLS gets the gift Note: courts will not affirmatively rewrite the will, even under misdescription doctrine

Question 19

Hollographic wills Requiremnts

Answer 19

Def.: Holographic Will is another way to create a valid will w/out witnesses; witnesses are not needed if all of the following req. are met Req’s of CPC §6111: signed by the testator, AND ✓ material provisions are in T’s handwriting, AND✓ what is the gift & who gets the gift court will look only at the words in the T’s handwriting to see if material provisions req. satisfied Note: T can make edits up until his death so long as they are in his own handwriting the document must illustrate testamentary intent ✓ Testamentary intent: must prove T intended for this document to be his will→the document shows how T’s property should be distributed ex. “my estate to Bob” is not sufficient to illustrate testamentary intent (we are unsure how to distribute the estate—what property?) Ways to show Testamentary Intent: statements in the holographic will in the T’s handwriting ex. “if anything happens to me, keep this letter” (see In re Kimmel) statements set forth as part of the preprinted form ex. letterhead of preprinted form says “Last Will & Testament” any extrinsic evidence outside of the will showing that T intended the holograph to be a will CPC §6111.5 ex. In re Kurwalt: court reasoned that a letter to T’s mistress that expressed his intention for her to get his property, coupled w/ the fact that he was hesitant to consult a lawyer b/c he didn’t want anyone to know about their relationship, and the use of the term inherit underlined in the letter, illustrated that he intended to make a holographic disposition

Question 20

Hollographic will not dated

Answer 20

If the Holographic Will is not dated: Does not need to be dated, but if lack of date makes the will confusing, the confusion goes against the holographic will; OR if another will has a date, it is assumed that the dated will was written after and if there are any inconsistencies, the later will wins! No dates? Formal will wins! So, un undated holograph is treated as superseded by a formal will (this can be overcome). Inconsistent Wills & Undated Holograph Risk: 2 or more wills exist, and there are inconsistent provisions in the wills, and the holographic is undated, the holograph is invalid in regards to the inconsistent provisions, UNLESS it can be proven that the holographic will was executed after the dated will Testamentary Capacity Risk: Where T may have lacked testamentary capacity at anytime at which the holograph may have been executed, then will is invalid, UNLESS it can be proven that it was executed at a time when the T had testamentary capacity THUS, (if challenged) an undated holograph opens one up to having to prove when it was created

Question 21

Material Provisions in a will

Answer 21

Material Provisions: may use preprinted portion to provide context for the testamentary intent only But material provisions still have to be in the handwriting of T CPC §6111 (c): CA expressly allows courts to consider preprinted forms to determine testamentary intent

Question 22

Revocation by writing Express Inconsistency Codicil Why do we care if will or codicil

Answer 22

Revocation of Wills Def.: Revocation is itself a testamentary act (therefore must comply w/ wills act) and once a will is validly revoked, revocation is effective immediately How to Revoke: By Writing (formally attested will or holographic will) By Physical Act applied w/ intent to revoke (act + intent req’d) ex. T drops will into shredder→ not revocation by act b/c it was an accident By Presumption of Revocation Dependent Relative Revocation & Revival Revocation by Operation of Law By Writing: Ways to revoke by writing: express revocation: where you expressly revoke in 2nd will ex. “I revoke any wills that came before this one” inconsistency: where T makes a second will that does not expressly revoke the prior will but makes a complete disposition of the estate, it is presumed that the 1st will has been revoked by inconsistency; where 2nd will does not make a complete disposition of the T’s estate ,it is viewed as a codicil and any prop. not disposed of under it is disposed of in accordance w/ terms of will #1 ex. Will #1: I give everything to LLS. Will #2: I give everything to Joe→Will #1 is revoked b/c it is inconsistent w/ Will #2 Codicil: a partial revocation of certain part of your will; must comply with wills act or be holographic; it is an amendment to your will—the rest of the will stands 3 Types of Bequests: Specific: a piece of property that matches w/ an individual ex. I give my watch to Joe. ex. the car I got from grandpa General: ex. I give $10k to LLS→we don’t care what $10k LLS gets ex. I give 100 shares of Apple Stock to LLS. if T dies w/out 100 shares of Apple, executor must go buy 100 shares and give them to LLS ex. I give $1,000 each, from Bank of America account, to A, B, C, D—this is a demonstrative general gift ex. I give 10 acres of property to Lucy. If this property does not exist at the time of T’s death, it is treated as a direction for the executor to go out and buy the property Residuary: Complete residue: made after the specific and general gifts are given away (unless you are giving away all of the estate in one bequest); typically the largest part of estate Partial residue: ex. I give the rest and reside to LLS, PILF, HBO, and Suzy in equal shares If residuary gift fails to one residuary beneficiary (b/c death of that residuary beneficiary) then the gift will go to the other beneficiary If residuary gift was to one person, and that person dies before T dies, then residue drops to intestacy How to Determine Will vs. Codicil? ask: what is left for the orig. doc. to do? Time (will comes first, codicil 2nd!) Residuary gift (if 2nd document has a residuary clause, it is likely a new will); if no residuary gift, you may have multiple wills ex. Doc #1: I give everything to LLS. Doc #2: I give my car to Fred & the rest & residue to LLS. What is Doc #2? ask: to what extent does document #2 supplant #1? there is nothing left for #1 to do—therefore #2 is a will, not a codicil ex. Doc #1: I give all to LLS. Doc #2: I give my car to Fred. What is Doc #2? what does Doc #1 have left to do? Lots! therefore it is a codicil (doc #1 still has to distribute everything else but the car) ex. Prof’s will today: “I give all to LLS.” Tomorrow, Prof. makes $1000 at work. Is this $1000 included in the will? Remember! Wills become operative @ death! Residuary clauses will pick up all otherwise undisposed of property at the time of death ex. Doc #1: “I give my car to LLS.” What happens to the rest of the estate? goes to intestacy! Residuary bequests ensure that nothing slips through the cracks and this won’t happen ex. Doc #1: “$10,000 to X. And my watch to Y.” Doc #2: “$2000 to Z. Rest + Residue to LLS.” Does #2, w/ residuary clause, illustrate an inconsistency w/ Doc. #1 and therefore a revocation? Rule: if it is an inconsistency, and the second document has a residuary clause, it will replace the first! If no residuary clause, you may have multiple wills (either can be revoked without affecting the other) ex. Doc #1: “My car to LLS.” Doc #2: “My watch to Fred.” here, there are two equally valid & effective wills—you can have multiple wills existing at the same time Why do we care if it is a will or codicil? R: if you revoke a will, you revoke all codicils to that will R: if you revoke a codicil, you do not disturb the will to which it relates ex. Doc #1: “$1,000 each to A, B,C, D. Rest + Residue to LLS and the DSBA. Doc #2: I give $1,000 to E. One week later, Prof. tears up Doc. #2. Analysis: Was Doc. #2 a will or codicil? Codicil! Was the codicil validly revoked? Yes by physical act w/ intent to revoke What happens to gift to A,B,C,D? Stands! They still get $1k each ex. What if instead, Prof. tears up Doc. #1? Analysis: Was Doc #1 will or codicil? Will! (why—residuary clause and was written first—indicate it’s a will) Was the will validly revoked? Yes What happens to the gifts? A,B,C, D, and E will get nothing! Revoking will revokes all codicils Hypo: 2007 Will gives all prop to A. 2012 will gives ring to B, car to C. How is T’s estate distributed: the 2012 document will be viewed as a codicil and both will be admitted to probate; B takes diamond ring, C takes the car, and A gets the remainder In 2013 T destroys the 2012 codicil w/ the intent to revoke it. T dies in 2013. 2007 will offered for probate. How is estate distributed? C gets no car and B gets no ring. A gets everything (including the ring and car b/c these assets go back to the estate once codicil was destroyed) In 2013, T destroys the 2007 will w/ intent to revoke. What happens? T dies intestate

Question 23

Revocation by pHysical act 3 elements

Answer 23

By Physical Act How to revoke by physical act: CPC §6120 Defacement on the face of the original will, AND includes: tearing, burning, marking out, obliterating not a copy! must be original will Intent by the T to revoke, AND The physical act was performed by the T or authorized 3rd party T performs the physical act to the writing, OR a 3rd party performs the physical act on behalf of the T when: the T is present at the time the act occurs, AND telephonic presence does not count! the act is done at the direction of the T

Question 24

Partial Revocation Increases gift

Answer 24

Partial Revocation by Phys. Act (failed gift): CPC §6120: proponent of will must show T intended the partial revocation What happens if gift to beneficiary increases by partial revocation? CL: the failed gifts (the stuff not partially revoked) cannot drop to residuary—will passes into intestacy CA: the failed gift (stuff not partially revoked) will go to the residue Hypo: Prof’s will: “I give a total of $10k to A and B.” Prof. keeps will in his safety deposit box. Later, Prof. decides B sucks and crosses be out. Will now looks like this: “I give a total of $10k to A and B.” How do we know when mark was put there & who put it there? if in Prof’s safety deposit b, we can assume Prof. put mark there What was mark intending? Prof most likely wants to take away from B. By crossing B out, he phys. revoked gift to B What do we give A? intent was to give $5k to A (50-50 split of $10k b/t A and B); can A get $10k? No! Can only increase a gift by compliant wills act writing or valid holograph The remaining $5k will go to the residue Rule: cannot increase a non-residuary gift by partial revocation by act! Hypo: “I give a total of $10k to A and B.” Then, I cross out $10k, change it to $5k and initial above. Will now looks like this: “I give a total of $10k $5k to A and B.” CSG What happens? Is will a valid holograph? Material provisions in T’s handwriting? No—b/c the “who” (A) is typed, therefore these markings make it so that both A & B would get nothing

Question 25

Revocation by lost wills doctrine and requirements How do you determine terms if will revoke

Answer 25

If T was the last one in possession of the will, AND✓ the will cannot be found after death, AND ✓ throughout the entire period that will existed before T’s death, T had mental capacity ✓ ^if all three req.’s are met, then there is a rebuttable presumption that T intended to revoke the will (and that is why you can’t find it) if rebutted, then will held to be lost and the terms must be proven in order to be admitted to probate can then be Rebutted: Party must show a plausible alternative for why the will cannot be found (very low threshold). Example 1: I take my will home with me, place it in my drawer, and then my house burns down, killing me. Plausible explanation for why the will cannot be found? House burned down, taking the will with it. Example 2: I die, first person who enters the house after death is my disinherited child. Plausible explanation? Child took the will in attempt to have will pass through intestacy and share in my estate. presumption can be rebutted by a preponderance of evidence (low threshold) nce Presumption is Rebutted, Lost Will Doctrine is InvPresumption oked: Only question remaining is to determine what the terms of the lost will are. Determine terms by offering extrinsic evidence: Have paralegal testify who typed up and remembers the will. Find a copy of the original will. Notes showing what T intended to be in will. Any extrinsic evidence can be used.

Question 26

Duplicate originals Presumption of revocation What happens if you revoke a duplicate original

Answer 26

Duplicate Originals: when there are two valid wills (i.e. you execute two on the same day w/ same lawyer and witnesses—signing two docs so you have one and lawyer keeps one). Presumption of destruction does not apply if there is a duplicate will. A duplicate will is not a copy. CPC §6121: if you revoke one of the documents by physical act, revoking either one of them revokes them both so long as there is affirmative evidence that the will was revoked (i.e. fire marks around edges, etc.) *Presumptive revocation does not apply to duplicate ori

Question 27

Revocation by operation of law - Divorce

Answer 27

Unless expressly provided otherwise, if after executing a will the T divorces, the divorce revokes any disposition of pro. to the ex spouse, any provision giving ex spouse special power of appointment, and any provision of the will making ex. spouse trustee, executor, conservator, or guardian But, if T remarries former spouse, the will is revived (1) former spouse is treated as if she predeceased (drops out of chart for inheritance purposes) Note: this provision applies only to testate transfers you cannot rebut the presumption of revocation upon divorce—only way to stop divorce from terminating rights under a will is by expressly saying so (see subsection (a)) Hypo: “I give all to Wife if she survives me, if not to my stepson C.” C is W’s son from a previous marriage. H & W divorce. H dies w/out changing will. What happens? CA Rule: divorce acts to revoke only from ex-spouse this is an express gift-over (gift is expressly given to C) CPC §5600: (applies to Nonprobate transfers—illustrates how a will doctrine is expanded to

Question 28

Omitted Spouse & kids presumption

Answer 28

Omitted Spouses & Kids: we begin with the presumption that omitted spouses and kids were accidentally left out; omitted spouse takes what they would take in intestacy CPC 21610 – Married After Execution of Testamentary Instrument Presumption: Where spouse marries decedent after the execution of the decedent’s testamentary instrument and was omitted, there’s a presumption that the exclusion was accidental, and the surviving spouse will receive: (1) 50% of the CP belonging to the decedent; (2) 50% of the quasi-CP belonging to the decedent; (3) A share of decedent’s SP that spouse would be entitled to if decedent died intestate, but no more than 1/2 of its value. Spouse cannot take more than 50% of SP. Compare: Intestacy rules allow surviving spouse to 100% of SP in certain circumstances. CPC 21611 – Rebuttable Presumption (Exceptions to CPC 21610): When the omission is not accidental the spouse will not receive the above amounts of property if any of the following is established: (1) Decedent’s Intent Shown in Instrument: Decedent’s intent to omit spouse is shown within the testamentary instruments; Example: “Nothing provided to my wife because she is of independent means”. (2) Decedent Provides for Spouse Outside of Instrument and Intent Shown; or (1) Decedent provides for spouse by transfer outside of the instrument passing the estate; and (2) Intention shown that this was to be in lieu of providing within the instrument by amount of transfer, decedent’s statements, etc. Example: Life insurance policy, creating trust. (3) Prenuptial Agreement: Spouse makes valid agreement waiving right to share in decedent’s estate. When Pretermission Applies – Abatement Rules: In order to provide shares of estate for omitted spouse, take pro rata from all beneficiaries (everybody loses a little bit). Spouse Omitted AFTER Marriage = No Presumption: If a spouse was omitted from the decedent’s testamentary instrument and the instrument was created after marriage, the above rules do not apply. B. Rights of Descendants Omitted from Will (CPC 21620-21622): When a child is omitted through a mistaken belief that he or she was dead, or if the decedent was unaware of child’s birth – CA does not limit itself to pretermission. Rebuttable Presumption of Accident: Where child is omitted from a testamentary instrument executed after his birth, presumed to be an accident and is given an intestate share. Knocked-Up Rule: Children of decedent presumed dead/unaware of birth. Intestate Share Given: Where, at the time of execution, the decedent omits a child: (1) Because they are unaware of the child’s birth; or (2) Believe the child is dead, (3) The child is given an intestate share. How to Protect Against Unknown Heirs: Similar to a no contest clause include something like: “I hereby provide 100k to anybody who can prove by genetics to be related to me.” Argument that this statement can serve as including unknown heirs. Rebuttable Presumption: When omission not accidental the child shall not receive an intestate share if any of the following are established: (1) Decedent’s Intent Shown in Instrument: Decedent’s intent to omit child is shown within the testamentary instruments; (2) Omitted Child’s Parent Receives Bulk of Estate: Decedent devised or disposes of substantial portion of the estate to the omitted child’s parent; (3) Decedent Provides for Child Outside of Instrument and Intent Shown: Decedent provides for the child by transfer outside of the instrument passing the estate; and Intention shown that this transfer was to be in lieu of providing within the instrument by amount of transfer, decedent’s statements, etc. Note: Does not apply if the will was executed after child was born. Omitted Descendants HYPO: HYPO 1: H has 2 children with W1 (A and B), then gets divorced. H then marries W 2, and has 2 children, C and D. H creates a will leaving everything to W2. H and W2 then get divorced. H then dies, leaving will with no mention of any of his kids. W2’s share: Nothing, due to revocation by operation of law. Who can challenge their omission? ONLY C and D, since they were born AFTER execution of the instrument. HYPO 2: Father provides for his 2 children, A and B in his will. A goes to Japan, and during a tsunami, is pronounced dead. Father, grief-stricken, omits A from his will, then jumps off a bridge and dies. 2 weeks later, A is found alive. A can get intestate share, since father believed she was dead.

Question 29

Revival What needs to happen when trying to revive will #1 from a revoked will 3

Answer 29

Revival: CL Approach: only way to revive a revoked will is to re-execute (comply w/ wills act) CPC §6123: If second will was revoked by physical acts: Will #1, revoked by Will #2, will remain revoked unless it is evident from the circumstances surrounding T at the time she revoked will #2 by physical act, that T intended to revoke the second will any evidence of intent during physical act of revoking will do! If second will was revoked by writing (i.e. a 3rd will): Will #1 revoked by Will #2, Will #2 revoked by Will #3 (revocation by writing), Will #1 will remain revoked unless the 3rd will evidences intent to revive Will #1 evidence of intent to revive the first will must be in the terms of the 3rd will if there are inconsistencies b/t Will #1 (which was revived, assuming intent has been proven) & Will #3 then the inconsistencies of will #3 will control

Question 30

DRR

Answer 30

1. Dependent Relative Revocation:
   
   1. Def: you would not have revoked your will but for a mistake of law and fact—therefore a court will assume you lacked intent to revoke and will treat your will as if revocation had never occurred
   2. Req.’s:
      
      1. valid revocation ✓
         
         1. by writing
         2. by physical act
      2. based on a mistake (of law or fact) ✓
      3. but for the mistake ✓
         
         1. if revoked by writing, evidence of mistake can only be proven by the terms of the revoking instrument
            
            1. i.e. evidence of the mistake is in the new will
         2. if revoked by physical act, evidence of mistake is found because an alternative plan of disposition failed
      4. T would not have done what he did to revoke the will
   3. Hypo: “I give $1000 to my nephew Charles.” valid typed & attested will. Later, T crosses out $1,000 and writes $1,500.
      
      1. Valid Revocation? ✓
         
         1. by physical act (crossing out) + intent to revoke (yes→T intended to revoke the $1k gift and increase it to $1,500)
      2. Is the writing a valid codicil?
         
         1. No! not valid b/c it is not wills act compliant and not signed (therefore not a valid holograph)
      3. Based on mistake?✓
         
         1. Law? or Fact?
         2. Law—here T thought his was increasing the bequest, not leaving him nothing
      4. But for the mistake, would he have revoked?✓
         
         1. Was there a failed alternative plan?
            
            1. yes! crossing out (phys. act revocation) illustrates an attempt to increase the gift—T would want nephew to get $1,000, not nothing
   4. Hypo: “I give Charles $1,000.” Crossed out and wrote $800.
      
      1. Valid revocation? yes by phys. act + intent to revoke
      2. Valid codicil? No
      3. What would T want: for Charles to get $0 or $1,000?
         
         1. probably $1,000—however, courts will only look to see if there was a failed alternative plan (here, the attempt to give $800) to determine the T’s intent
   5. Hypo (pg. 233): Formally attested will: “I give $5k to John.” Later, T crosses out John & writes “Nancy w/ residue to LLS”.
      
      1. Valid revocation? yes by phys. act + intent
      2. Can the $5k go to Nancy? No, you must comply w/ wills act and this is not a valid codicil
      3. Can we apply DRR?
         
         1. Mistake: T thought he was making a valid codicil (mistake of law)
         2. Causation: generally, when change is the “who” courts will not ignore the revocation (b/c clearly T didn’t want Join to get the $5k) & therefore its likely that the bequest will be revoked
      4. Hypo: evidence shows that T gave to Nancy b/c she is his granddaughter and John is his son & T thought he would let John avoid estate tax by giving to Nancy. Can we apply DRR?
         
         1. Failed alternative gift? yes! clear intent that T wanted the money to stay in the family over it going to LLS, therefore, the court may ignore the revocation
   6. Hypo: T writes VOID across her current will. Later she shows the will to her lawyer and tells him to make a new one; he makes one but there are some errors in it and she tells him to change it. Before its fixed, T dies. The lawyer testifies who the beneficiaries were supposed to be under the new will. Does DRR apply to cancel the revocation of the first will?
      
      1. Valid revocation? yes
      2. Based on mistake?
         
         1. No! T wasn’t mistaken, she assumed she would live long enough to make a new will—this was NOT a mistake and therefore DRR does not apply
   7. Hypo: T’s will gave $5k to his old friend Judy, and residue to his brother Mark.
      
      1. T made codicil that said: “I revoke the money to Judy, since she’s dead.” In fact, Judy is alive. Does Judy take?
         
         1. Yes! b/c this was a revocation by writing, w/ a mistake of fact, mistake caused revocation is in the writing (writing shows he wouldn’t have revoked if he knew J was alive)
      2. What if codicil said: “I revoke money to Judy since I already gave her $5k.” In fact, T did not give Judy $5k. What result?
         
         1. Judy does not take b/c the revocation is valid. Why? Mistake must be something not within the T’s knowledge
      3. What if the will left no hint as to why bequest to Judy was revoked? A lawyer testified that a friend told T that Judy had died, even though she hadn’t. Does DRR apply?
         
         1. In re Anderson (Cal.) held that DRR was applicable even though there was no explicit terms of mistake in the 2nd will; the testimony of the lawyer was suff. evidence of intent
         2. *this is an outlier case (but reflects a movement towards harmless error applied to revival)

Question 31

4 doctrines to determine what comprises the will: Integration (focus on phys. relationship b/t papers present @ time of execution of the will) Republication by Codicil (reaffirming codicil re-executes & re-dates the will) Incorporation by Reference (will references document outside the will that helps construe it) Acts of Independent Significance (if there’s a lifetime reason for an act that relates to a bequest, other than changing bequest, then the post-execution act will be upheld)

Answer 31

Components of a Will

What is the will?

4 doctrines to determine what comprises the will:

1. Integration (focus on phys. relationship b/t papers present @ time of execution of the will)
2. Republication by Codicil (reaffirming codicil re-executes & re-dates the will)
3. Incorporation by Reference (will references document outside the will that helps construe it)
4. Acts of Independent Significance (if there’s a lifetime reason for an act that relates to a bequest, other than changing bequest, then the post-execution act will be upheld)
5. Integration: all papers present at the time will executed & intended to be part of the will=will; answers question of what is the will
   
   1. Estate of Rigby
      
      1. Facts: will was found by surviving spouse, folded together in ledger but not otherwise fastened; both pages are written by T and initialed and dated at the top of each page w/ same date; one page was signed at bottom, the second page is not numbered and does not refer to the first in any way, it’s a list of prop w/ each item followed by the name of an indiv. and is not signed
      2. Holding: only the first page is a valid holograph b/c it is not clear that 2nd page was intended to be included w/ the first
      3. Why:
         
         1. both pages are signed in T’s hand, in same envelope as Doc 1, which illustrates testamentary intent (Doc 1 said “in as much as I don’t have a will, I want my stuff to be distributed as X, Y, Z”); however, there is no evidence that T wanted Doc. #2 to be a part of the will; it could easily be interpreted as a work sheet listing T’s assets as a preliminary step before drafting the first page
6. Republication by Codicil: codicils reaffirm, re-execute, and re-date the original will to which they apply; republication can cure a defectedly executed will if the defect is minor (i.e. you cannot republish a fatally defected will or a will that did not exist) (i.e. cannot republish a will that was not signed)
   
   1. ex. if you discover a defect in will execution, you can make a codicil that says “I affirm all things in my will”—you have cleansed the problem of defect (remember, codicils can be formally attested or holographic)
   2. Estate of Nielson (Cal.): T drew lines through the provisions of his typed will and wrote b/t the lines “bulk of estate to Shrine Hospital for crippled Children LA;” T initialed in margins and signed and dated at tope and bottom
      
      1. Holding: the handwritten words constituted a holographic codicil that republished the typed will as modified
      2. Rule: a holographic codicil can republish a valid underlying will
7. Incorporation by Reference:
   
   1. Existing writings: incorp. by reference allows for a writing that was in existence at the time the will was executed but was not itself executed w/ will’s act formalities to be absorbed into the will
   2. Traditional Req.’s:
      
      1. will expresses intent to incorporate something not in the will
      2. will sufficiently identifies what it means to incorporate
      3. that which is meant to be incorporated is in existence at time will is executed
   3. CPC §6132:
      
      1. A will may refer to a writing that directs disposition of tangible personal property not disposed of in the will, except for money. A writing directing the disposition of tangible personal prop. is effective only if all the following are satisfied:
         
         1. an unrevoked will refers to the writing
         2. the writing is dated and is either in the handwriting of, or signed by the T (*does not need to be will’s act compliant)
         3. the writing describes the items and recipients w/ reasonable certainty
      2. if the writing doesn’t satisfy those conditions, you can still prove that T intended the outside document to be incorporated into the will
      3. the writing may be written or signed before or after the execution of the will
      4. the T may make subsequent handwritten or signed changes to the writing and if there are any inconsistent dispositions of the tangible personal prop. b/t the writings, the most recent writing controls
         
         1. i.e. you can edit as much as you want
      5. Limit: the total value of the personal property identified and disposed of in the writing, valued at the time of death, cannot exceed $25,000 and any individual item cannot be more than $5,000; if one item is found to be over $5,000, it will be distributed in the residue of the will and will not count toward the $25k limit
   4. Clark v. Greenhalge:
      
      1. Facts:
         
         1. 1972—memo made for guidance of nephew to distribute T’s estate;
         2. 1976—T modifies memo;
         3. 1977—executes will w/ clause that says “nephew shall distribute the property to and among such persons as I designate by memorandum left by me and known to him or in accordance w/ my known wishes.”;
         4. 1979—T makes notebook and writes in it that P gets her farm painting;
         5. 1980—T makes two codicils to the will;
         6. 1986—T dies.
      2. Holding: notebook was incorporated by reference & therefore a part of the will
      3. Why:
         
         1. testamentary intent to incorporate? Yes—low threshold of proof
         2. adequate identification? yes—low threshold of proof
            
            1. △ argued that “memo” was not adequate ID—court rejected this argument
         3. document in existence @ time will was made? No
            
            1. the Memo was in existence when will made but the notebook in which T gave painting to P was made 2 yrs. after will made
            2. BUT, the 2 codicils republished the original will
      4. Courts will usually rule that any notations in notebook made after when the 1980 codicils were written would not count
   5. Hypo: Will says: “I give $1 to everyone in the Cincinnati phone book.” Is this incorporation by reference?
      
      1. No! You are using the Cincinnati phonebook as a reference point, not incorporating the entire book into your will
   6. Johnson v. Johnson:
      
      1. Facts: T wrote 3 typed paragraphs stating that the doc was T’s will; the typed text was not signed or witnessed but underneath the typed text, T wrote “to my brother James, I give $10 only. This will shall be completed unless hereafter altered or rewritten.” T then signed and dated the document below the handwritten part.
      2. Holding: Yes, the typed part can be incorporated by reference
      3. Why:
         
         1. Is the will valid? only the handwritten part is a valid holographic codicil (to who—James, what—$10, signed & dated)
         2. Can we integrate the typed text?
            
            1. You can technically integrate but you cannot give the typed text any effect (holographic codicil cannot give effect to a typed will)—integration just makes the typed text a part of the will (so the pages of the typed text are there, but you cannot enforce them b/c they are not handwritten like the codicil)
         3. Can we incorporate by reference?
            
            1. Writing in existence at time will was made? Yes! you can incorporate b/c you are giving effect to the stuff in the typed text
            2. Incorporation by reference allows you to follow the directions of the integrated writing→incorporation tells us the directions for the will (that is why you can incorporate the Cincinnati Phone Book—b/c you aren’t trying to physically make it a part of your will, you are just looking to the phone book to see where the property is supposed to go—the people in the book)
         4. Can we republication by codicil?
            
            1. No b/c the underlying will (the typed text) is invalid
8. Acts of Independent Significance: will references an act that has not yet happened but will have an affect on who or what but must have independent significance apart from the will
   
   1. Rule: if the beneficiary or property designations are identified by reference to acts or events that have a lifetime motive apart from their effect on the will the gift will be upheld
   2. ex. Prof. leaves daughter the “contents of the garage.” Sometimes, he parks in the driveway, sometimes in the garage. These acts have non-testamentary intent—he moves in the garage when its raining and out when its sunny (the point is not to increase the bequest to his daughter)
   3. ex. If Prof. moves TV into garage with intent to increase the gift to his daughter, the court will not respect the bequest
   4. ex. Prof. takes Ford and trades it in for a Maserati. Is this huge increase in value enough to call into question the intent in his making the purchase?
      
      1. illustrates the ambiguity in these cases!
   5. Hypo: I give $1,000 to all beneficiaries named in my Brother’s will. Brother has not made a will yet.
      
      1. Act outside the will? yes
      2. act that determines who gets what? yes
      3. intervivos purpose? yes—it has independent significance in your life—that you respect your brother’s testamentary intent/plan
   6. Hypo: Kids are born after you make the will. Do they get to take based on act of independent significance?
      
      1. Yes! You have kids not to increase the amount of members in your gift pool, but because you want to have kids
   7. Hypo: (pg. 256)
      
      1. T gives “the contents of my house” to A. In T’s house there is jewelry, furniture, and a safe with stock certificates and cash. Does A take these items?
         
         1. only the tangible personal property items are there for a lifetime motive (to be used by T while alive)—therefore A will take everything but the stock and cash
         2. Hypo: art collector would rotate paintings among the walls of his house. He left contents of house to friend. Court held that expensive artwork counted in contents of the house b/c T enjoyed them during his life (indep. significance)!
      2. T left “contents of desk drawer” to X. Problem is that T could have put a ton of stuff in the drawer knowing his was going to die and therefore had testamentary intent, which is not an act of indep. significance. To determine, courts look at the contents of the drawer.
         
         1. Is stock something you’d lave in a drawer? No. you would put it somewhere safe
         2. How about a diamond ring? If T had a safe where all other jewelry was, could you prove the diamond was put in drawer for testamentary purpose? Or can you show that T put it in drawer for starge b/c she war it everyday and therefore putting it there was a lifetime purpose?
            
            1. shows how fact specific this inquiry is!
      3. T left the “contents of safety deposit box” to Y.
         
         1. R: contents of safety deposit box will be allowed to be a bequest under acts of indep. significance
         2. Why: there is little likelihood of fraud b/c only T had access to it

Question 32

Contract to making a will

Answer 32

Contracts Relating to Wills (CPC 21700):

• Background:
  
  • Priority to Creditors in Probate: Creditors get paid before beneficiaries in probate.
    
    • An individual who has a contract related to a will = a creditor.
  • Contracts and Wills Are Separate: The contract related to the will and the underlying will are separate.
    
    • Breaching contract does not change the devise in the will, BUT will be able to be sued for damages by estate.
    • Performance of the contract with no actual devise does not affect the will, BUT will be treated as a creditor of the estate.
• Ways to Establish a Contract Related to a Will – CPC 21700: A contract relating to a promise to give (by will, devise, or other instrument) or a promise not to revoke (a will, devise, or other instrument) or a promise to die intestate can be established by any of the following:
  
  • Will Provisions with Contract Provisions: Provisions of a will or other instrument stating the material provisions of the contract.
  • Reference in Will and Extrinsic Proof of Terms: An expressed reference in a will or other instrument to a contract and extrinsic evidence proving the contract’s terms.
  • Signed Writing by Decedent Proving Contract: A writing signed by the decedent evidencing the contract.
    
    • Ex: Signing a cocktail napkin would suffice.
  • Clear and Convincing Evidence of an Agreement: Clear and convincing evidence of an agreement between decedent and claimant or a promise by the decedent to claimant that is enforceable in equity.
    
    • Thus, does not need to be in writing.
• Example – Promise to give: Testator agrees by contract with A to leave everything to A at testator’s death if A takes care of testator for life. Testator executes a will leaving her estate to A. Subsequently, A changes her mind and does not take care of testator. Testator rescinds the contract. Testator then dies.
  
  • The will and the contract are separate – the contract does not affect the will. A takes according to the will, even though A breached the contract and it was rescinded, BUT A will have to pay damages for breaching the contract.
  • How to make sure A does not get the estate? Revise the will so that A does not take.
  • What if A and testator were married before the contract to give was agreed to? Marriage creates a legal duty to care for your spouse – contract would not be enforceable since there would be no consideration, since a legal obligation to care for already exists.
• Promise Not to Revoke:
  
  • CPC 21700(b) – No Presumption Not to Revoke: Execution of a joint will/mutual will does not create a presumption of a K not to revoke the will or wills.
    
    • But Note: Beneficiaries can prove by any of the ways in CPC 21700, including clear and convincing evidence (i.e. does not need to be in writing).
  • Example: H and W marry, both have child from previous marriage. H and W execute mutual wills leaving everything to each other, then to split up everything to both children upon death. H dies. W promises children A and B that she will not revoke the will. Then W changes will to make her new husband, B, the sole beneficiary.
    
    • Held: There is no presumption of any agreement not to revoke; if you want to impose a contractual agreement not to revoke you must do so expressly, spelled out in great detail – there is a very high standard – courts will not restrict your ability to dispose of your property by will.
    • W Promised by Contract Not to Revoke: Assuming it can be proven with clear and convincing evidence.
    • W always has the power to revoke, but the contract claim will always exist. Thus, A will invoke the contract claim at death, be treated as a creditor, and can sue for breach of contract. A would take as if the will had never been revoked.
    • What if the W does not revoke, but starts giving away large inter vivos gifts to her child, B? Anybody with a contractual right can assert the rights under the contract, and sue for waste. Includes subsequently acquired assets after the contract is created.
  • HYPO: Suppose W promises her husband H that she will take care of him for his life in consideration of H devising her Blackacre. H then dies, devising Blackacre to A. Is the contract enforceable by W?
    
    • No, W already has an obligation by virtue of their marriage to support her husband (under the law) so there is no consideration. She has a spousal obligation for support. If were just friends, then consideration.
  • HYPO: H and W to each other, and if not, to children. Parties include provision that says they will not revoke or take any other action that would intrude on testamentary plan. Wife gets Mario and buy him lavish things.
    
    • Children do not have any claim or cause because she’s giving away inheritance in real time. However, may have a claim for waste based on contract for future inheritance. As a beneficiary, no rights until mom dies. As a contract claimant, particular interests may arise if there is lavish and extravagant spending.
  • HYPO: If H dies, and W revoked old will and makes new will devising to Mario. Children can claim breach based on contract and will assert standing under the original will (they are creditors). Only after they take, Mario will be able to take under the new will.

Question 33

Separate property division

Answer 33

to the issue of the decedent→divided equally among them (if they are equal in degree of kinship to the decedent)

if no issue, but parents→ divided equally among parents

if no issue and no parents→divided equally among issues of parents (if they are all the same degree of kinship to the decedent)

if no issues of parents→ grandparents OR issues of grandparents (divided equally)

if no issue, parent or issue of parent, grandparent or issue of grandparent→divided equally among issues of a predeceased spouse (meaning you were married at the time your predeceased spouse died—not ex-spouse!)

if no surviving issue, parent or issue of parent, grandparent or issue of grandparent, and no issue of predeceased spouse→divided equally among next of kin

if no next of kin→divided equally among parents or issues of parents of a predeceased spouse (family tree of your predeceased spouse)

escheat to the state!

Question 34

Redcapture Rule Real Property

Answer 34

When H & W die close in time (CPC §6402.5): Recapture Rule!

Real property?

anything the 2nd-to-die spouse got from when 1st died, will be redistributed to 1st spouse’s family when 2nd spouse dies if 2nd spouse never remarried, died intestate, and without issues w/in 15 years of 1st spouse’s death

Req’s for real property to go back to 1st to die spouse’s family:

No issues,

2nd to die spouse has not remarried

2nd to die spouse died intestate

2nd to die spouse died w/in 15 years of first spouse

=property attributable (has the fingerprints of the 1st to die spouse) will go back to predeceased spouse’s

*includes interest acquired by a surviving joint tenant!!

Question 35

Personal Property Recapture Rule

Answer 35

CPC §223 (b): if property held in joint tenancy, and it cannot be decided who died first by clear and convincing evidence, it will be split 50-50

Personal property?

Req’s for personal property to go back to 1st to die spouse’s family:

No issues,

2nd to die spouse has not remarried

2nd to die spouse died intestate

personal prop. is worth an aggregate value of over $10,000

2nd to die spouse died w/in 5 years of 1st spouse

there is a written record of ownership for the property (i.e. a receipt; title; etc.)

=property attributable to the predeceased spouse will go back to their family

Question 36

Adoption Intestacy

Foster Parent

Equitable

Answer 36

Adoption: establishes natural parent child relationship

CPC §6451: adoption severs natural parent-child inheritance, unless (a) and (b) are both satisfied:

Nparent lived w/ adopted child, OR Nparents cohabited OR were married at time adopted person was conceived and the parent died before birth, AND

the adoption was by the spouse of either of the natural parents or after the death of either of the natural parents

in either of (a) or (b), the child gets inheritance rights from & through natural parent, even though they were adopted→we preserve inheritance rights of child to inherit from & through displaced natural parent but we do not preserve this inheritance right for the parent

ex. H +W have C. Then Divorce. H leaves. New H moves in w/ W. New H wants to adopt C. By adopting C, C will establish inheritance rights from New H but C also has inheritance rights from and through H (but cannot inherit from C)

Hypo: H dies. W remarries New H. New H adopts C.

C gets inheritance rights from and through H as well as from and through New H

Hypo: H leaves W and says “I’m leaving but you can reach me via email.” W finds New Friend. Friend and W do not marry. Friend wants to adopt C. H consents.

C can only inherit from and threw New Friend—adoption creates new relationship b/t New Friend and C

Note: even if New Friend and W get married after he adopted C, this would not give C inheritance rights w/ H.

Foster Parent Adoption

CPC §6454: parent-child relationship exists if both of the following are satisfied:

the relationship began when child brought in as a minor to foster parent’s home and this continued until foster parent died, AND

you can prove by clear & convincing evidence that you would have been adopted but for a legal barrier

ex. of legal barrier→absence of consent from the natural parent

Child can inherit from & through foster parent—but foster parent cannot inherit from and through child

Note: if child is over 18 when the stepparent passes, and is trying to claim inheritance rights based on this rule, they will be unable to b/c the legal barrier has disappeared—they could consent themselves to adoption b/c they are over 18

Hypo: Same as above but H will not consent to adoption. Because H does not consent, New Friend cannot adopt, even though he wants to. Friend dies. Can C inherit?

Yes! (b/c there is clear and convincing evidence that he would have been adopted but for the legal barrier)

Hypo: H + W married and have C. H flees and divorces W. H2 adopts C w/ H’s consent. H2 never married W. Can C inherit? From who?

the adoption was by a non-stepparent and therefore is a traditional adoption which severs the relationship b/t H and C. C will only inherit from and through W and H2, not H!

Equitable Adoption (CPC §6455)

Adoption under this must be contractually based (meaning each party has the ability to contract for the adoption; a valid contract must underlie the adoption): an agreement b/t a natural and adoptive parents is performed by the natural parents by giving up custody, and performed by the child by living in the home of the adoptive parents, partial performance by the foster parents in taking the child into the home and treating it as their child

Question 37

Posthumously born and Conceived children

Answer 37

Posthumously Born Children

CL Rule: if H and W were married, presumed that a child born w/in 280 days of father’s death was presumed to be his child

Modern Rule: if H and W were married, child will get inheritance rights if born w/in 300 days of father’s death or divorce of H and W

inheritance rights relate back, even when father died before birth

*when using paternity tests to establish inheritance rights, courts look more harshly at children asserting rights ag. a deceased parent

Posthumously Conceived Children:

CPC § 245.9: inheritance rights (from and through deceased parent) will relate back to death of deceased parent is all conditions satisfied and proved by clear & convincing evidence that:

decedent signed and dated consent that their genetic material shall be used for posthumous conception

can be revoked by signed and dated writing

the decedent appointed someone to control use of the genetic material

that person has to give notice to the world that there is a possibility that another heir will be born and take

that notice is given w/in 4 months of decedent’s death

child is in utero w/in 2 years (20 months—b/c of 4 months you have to give notice)