Practice Flashcards
(37 cards)
2 Ways that Property will be Treated as an Advancement
(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.
When recipient predeceases Decedent, Does an advancement count against isssue
No
Simultaneous Deaths Wills, Intestancy and husband & wife
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)
Slayer Doctrine and do issue take (wills & intestancy). Burden of proof. Expressed Gift over in a will. Final Judgment. Final Judgment
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.
Doctrine of antilapse What needs to be satisfied What tipe of relationship
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.
Elder abuse and elements
What Standard
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
Parental Neglect elements
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.
Disclaimer
Disclaimer for division
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
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
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).
Conditional gifts adn negative disinheritance
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
Choice of law will
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
What kind of compliance state is California for Wills
Strict compliance with with exceptions
Signature Requirement Delayed attestation Harmless error witnessing of signature
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!!
formalities of will + harmless error
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
pressence requirement
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
Are electrnonic wills ok
No
Signature Requirement Interrupted signature Order of singing Subscription Delayed Attestation Harmless error Witness requirement and burden
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!!
Witness Requirement: Delayed attestation Interested Witnesses CA rule Misdescription
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
Hollographic wills Requiremnts
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
Hollographic will not dated
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
Material Provisions in a will
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
Revocation by writing Express Inconsistency Codicil Why do we care if will or codicil
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
Revocation by pHysical act 3 elements
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
Partial Revocation Increases gift
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