Trusts & WIlls

Question 1

Integration

Answer 1

(1) will consists of all papers actually present at the time of execution that T intended to consititute her will
(2) requisite intent and presence of the papers at execution
(3) extrinsic evidence is available to show intenet

Question 2

Incorporation by reference

Answer 2

T must intend for document by showing
(1) document be in existence at the will’s execution
(2) sufficiently described in the will and
(3) proved to be the one described in the will

Question 3

Omitted Child

Answer 3

(1) T may intentionally choose to disinherit children
(2) if a D unintentionaly fails to provide for a child born or adopted AFTER execution of the instrument, the child gets intestate share

Question 4

Undue Influence (Will)

Answer 4

must establish
(1) influence was exerted on the testator
(2) effect was to overpower mind and free will of the T
(3) but for the influence, the change would not have happened

Question 5

3 Tests for Undue Influence

Answer 5

(1) Prima Facie - factor analysis
(2) Common Law Presumptin of Influence - Shifting Burden
(3) Statutory

Question 6

Undue Influence
Prima Facie

Answer 6

(1) Susceptible – some weakness - physical, emotional, financial.
(2) Opportunity.
(3) Active participation – the wrongful act that gets the gift.
(4) Unnatural result – not unnatural to prefer 1 kid over others.
(5) Wrongdoer benefits financially – watch for substantial indirect benefit.

Question 7

Undue Influence
Common Law - Burden Shifting

Answer 7

(1) Confidential relationship
(2) Active participation
(3) Unnatural result
(4) Wrongdoer benefits

Question 8

Undue Influence
Statutory

Answer 8

a donative transfer is presumed product of undue influence if to
(1) drafter,
(2) fiduciary who transcribed instrument,
(3) “care custodian” of “dependent adult” if instrument executed during care or +/- 90 days, or

Exception: presumption inapplicable if care custodian already had personal relationship with the transferor before

Question 9

Conservator - WIll Execution

Answer 9

A validly appointed conservator can make a will or codicil for a now-disabled / incompetent person.

Question 10

Rights of Creditors to Reach Assets in Trust

Answer 10

Revocable Trust: Assets are reachable by creditors

Question 11

Valid Will Location Execution

Answer 11

will is considered valid in CA, if it complies with the laws of
(i) California,
(ii) the state where the will was executed, or
(iii) the state of the decedent’s domicile at death.

Question 12

Spendthrift Provision:

Answer 12

Provision that prevents beneficiary from transferring, and creditors from attaching, his right to future payments.

Question 13

Support Provision:

Answer 13

Provision that allows trustee to pay to beneficiary only as necessary for his health, support, maintenance, or education. Same rules as Spendthrift Provision

Question 14

Discretionary Provision

Answer 14

Provision that gives trustee sole and absolute discretion to determine when and what, if ever and anything, to give to beneficiary.

Question 15

Ademption

Answer 15

(1) ademption depends on whether the T intended to adeem the gift when he disposed of the property