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Flashcards in Wills Deck (67):
1

Test 4 Capacity to make will
(don't raise issue unless facts trigger)

@ time of execution MUST:
1. be at least 18
2. able to understand extent of her property
3. know the natural objects of her bounty (spouse, partner, children, parents, those affected by will)
4. know nature of her act (executing will), not all technicalities

No capacity? ENTIRE WILL is VOID and prop passes per intestate succession (serious, goes to testator's entire essence!!)

EXCEPTION: if valid prior will, (revoked only by recent will) will be probated, bc no capacity to revoke

possible RED FLAG:
Conservator Appointed or diagnosis of mental disorder - go through 4 step test!
*no date on will problematic for Capacity problems

2

Insane Delusion and test

will can be attacked if AT TIME of execution, testator was suffering from insane delusion =
1. T had false belief
2. which was product of sick mind.
3. NO evidence to support belief, (not a scintilla)
4. and Delusion AFFECTED TESTATOR'S WILL

Delusion? PART of will affected by delusion VOID -
and goes to residuary devisee; if none or that is part affected - by intestate succession

Narrow problem

3

Fraud

1. representation of material fact
2. Known to be false
3. intended to induce reliance
4. causes actual justifiable reliance
and 5. damages

1. Fraud in Execution
2. Fraud in the inducement
3. Fraud in preventing testator from revoking

4

Fraud in the Execution

T does NOT intend document to be his will/codicil.

1. person FORGES T's signature to will
or
2. T is given & signs doc that purportedly is NON testamentary in nature, but in fact is

RESULT: ENTIRE will is VOID
Prop passes intestate succession (unless prior valid bc not revoked by this fraudulent one)

5

Fraud in the Inducement (Lie)

T intends doc to be his will, but Wrongdoer's representations affect its CONTENTS

RESULT: PART of will affected by fraud is VOID;
Ct has 3 options:
1. give prop to residuary devisee, if any or
2. if no residue, give prop to heirs at law by intestate succession or
3. Constructive Trust (make residuary or heirs at law constructive trustee w/ duty to TRANSFER prop to intended beneficiary as decided by Court.

6

Fraud in preventing testator from revoking (lie)

Due to Fraud, T does not revoke will as planned; variation of Fraud in Inducement;

RESULT:
1. ct will NOT probate will, prop goes to legal heir
Who 2. Ct will decree is constructive trustee w/ duty to transfer prop as T intended per Court.

7

Undue Influence (NO lies, just wrongful conduct)

T's free agency is made subservient (discuss all):

A. Prima facie case CL
1. Susceptibility - ANY T weakness such that he is able to have his free will taken over: psychological, financial, physical etc.

2. Opportunity - access to T: friend/associate

3. Active Participation- act; use of force, threat, blackmail

4. Unnatural result - wrongdoer, not expected to take by his relationship, takes devise

RESULT: PART affected is VOID, Ct discretion to devisee, or if none to Heir, OR constructive trust for either to prevent unjust enrichment

B. Case Law Presumption
1. Confi relationship exists (atty/client, dr/patient, guardian/ward, clergy/penitent, trustee/benef, OR where 1 person reposes trust in another -friend)
2. Active Participation
3. Unnatural Result

RESULT: PART affected is VOID, Ct discretion to devisee, or if none to Heir, OR constructive trust for either to prevent unjust enrichment

AND/OR
C. Statutory Presumption
Presumes donative transfer (of will, trust, deed) is product of undue influence IF:
1. Drafter (Conclusive)
2. person in Fid relationship to T (trustee/lawyer)
(rebuttable by C/C evidence)
3. Care Custodian of Dependent adult (executed during care or 90 days before/after,
(rebuttable by C/C evidence))
--spouse, partner, relative, roommate, EE, partner, SH, ER of 1-3 above (Conclusive)
--partner, SH, ER of law firm in which drafter has ownership interest

UNLESS
-Spouse/partner, cohabitant, 4th Degree relative of T
-Doc reviewed by indie atty who counsels T and certfies
-small gift compared to estate (less than 5%)

RESULT: Gift Lapses or Fails and goes to residuary, or heirs; transferee getting gift deemed to have predeceased transferor w/o spouse, partner, issue.

8

care custodian !

person who provides health or social services to dependent adult (NOT person w/o compensation if personal relationship outside svcs)

9

dependent adult !

person 18 yrs or older at time of execution and
1. unable to provide for his personal needs or
2. due to a deficit in mental function, difficulty managing financial affairs or resisting undue influence.

10

Degrees of Relationshiop

1st: children, parents
2nd: grandparents, grandchildren, siblings
3rd: great gpas/children; aunts/uncles, nephews/nieces
4th:, grand nephews/nieces, 1st cousins, great aunts/uncles

11

Mistake

1. content
2. execution
3. inducement
4. description/ambiguity
!!! 5. Validity of a subsequent testamentary instrument (DRR)
6. Mistake involving living children (Pretermission)

12

Mistake in Content

WRONG Beneficiary or gift named/made
1. Mistake in OMISSION - (words left out)
NO remedy, will not re-write

2. Mistake in ADDITION (words added by mistake)
RemedyMAY be avail, strike wrong part, noRewrite

13

Mistake in Execution

Signs wrong document
1. believing it is NOT will
Result: NOT probated

2. Reciprocal/mutual Wills (leaving all to each other)
Result: Ct MAY reform if equitable, esp. if married

14

Mistake in inducement

gift made or NOT made on basis of T's erroneous beliefs (thinks dead)

Result: NO relief given UNLESS:
it was mistake, AND face of will says it would do it but for the mistake (rare)

15

Mistake in description !

no one/nothing fits description in will; or 2 things/persons fit description!

Result:
LATENT ambiguity-no error on face; can introduce Parol evidence to establish ambiguity and intent

PATENT ambiguity-apparent;
Tradl: no remedy avail
VS
Modern CA: Parol evidence for ANY ambiguity to determine T's intent

16

!! Mistake in Validity of a subsequent testamentary instrument and DRR

Applies when T revokes his will upon a mistaken belief that a new disposition of his property effectuated his intent (but didn't); and but for this mistaken belief he would not have revoked the will;

DRR revives terminated will 1
DRR allows intent of T to be carried out
-we know intent because shown 2x (will 1 and 2 are VERY SIMILAR, if not identical)

(Dependent Relative Revocation) DRR allows a court to disregard a revocation caused by mistake;

1. if testator revokes her will or a portion thereof
2. in MISTAKEN belief that
3. a SUBSTANTIALLY identical will or codicil effectuates her intent,
4. then by operation of law revocation of 1st will deemed conditional, dependent, and relative to 2nd effectuating T's intent
5. IF 2nd does NOT effectuate T's intent, the 1st was never revoked (by legal fiction)
6. BUT DRR need NOT APPLY when subsq doc REVOKING WILL HAS DEFECTIVE EXECUTION bc didn't actually revoke will 1 at all!

(ex. will #2 invalid; will 1 probated under
LOST WILL PROVISIONS - at least 1 witness testifies as to terms of Will (can be any person)
ex. OR 2 VALID, but doesn't effectuate T's intent bc of mistake)

17

Will can be revoked by: revocation

1. physical act - tear up, destroy, cancel
2. Subsequent executed will/Codicil
3. Operation of Law

w/ simultaneous Intent to revoke

18

Lost Will Provisions

lost will or accidentally destroyed Will can be probated if
1. at least 1 witness testifies as to terms of Will
2. witness doesn't have to be one of official attesting witnesses, but can be lawyer who was there

19

Mistake regarding Living Children -Pretermission

Accidental Omission;
Child is Pretermitted if born/adopted AFTER all testamentary instruments executed & NOT provided for in any of them

Result -
Pretermitted child takes intestate share of estate PLUS assets held in intervivos trust (other gifts reduced/abated)
UNLESS -
1. clear INTENT to omit child apparent in doc
2. T had children, and transferred or trusted substly all assets to PARENT of omitted child
3. Child provided for outside Testamentary instrument w/ intent it was in LIEU of provision


NOTE: Child born/adopted BEFORE all instruments executed is NOT pretermitted & takes nothing! ...
UNLESS only reason wasn't mentioned is bc T erroneously thought child dead or not existent (mistake, didn't know of birth)

20

testamentary instrument

any will, codicil (Supplement), revocable inter-vivos trust established by T during his lifetime

21

Integration

permits papers or writings that were Actually Present at time of execution that T intended to constitute her will, be probated with the will. probated IF:
1. INTENT - T intended for papers in question to be part of will
AND
2. PRESENCE - paper MUST have been actually or physically present at time of execution

To prove integration, establish
a. physical connection (staple)
b. logical connection (last word p.1 fits beg page 2)

22

incorporation by Reference

non integrated writing admitted into probate given testamentary effect and becomes part of will
ex. I give prop to grantee listed on ABC Deed
NEED
1. Doc or writing (need not be legally valid to show reference)
2. that was IN EXISTENCE when will was executed
(a later modification of doc will NOT count)
3. clearly identified/described in will
4. T intended to incorporate doc into will (implied by Ct if 1-3 are met!)

won't work: I leave prop to ppl in note I'll write tmrw (not in existence)

23

Facts of independent signficance

TEST: even w/o will, would this fact exist? Sufficient significance apart from its impact on the will

allows the court to fill in certain blanks in the will w/ documents or facts effectuated during T's lifetime for primarily nontestamentary motives.

-past or future
-bc truthfulness to such indie fact/act that is susceptible of independent verification; (to members of my church, join church for non probate reason)

won't work: I leave prop to ppl in note I'll write tmrw (not of independent significance bc sole purpose to list B)

24

writing disposing of limited tangible personal prop
CA probate 6132;

CA probate 6132; a writing (even if not by reference or indie significance) may be admitted into probate and given testm effect IF:
1. WRITING referred to in will: DATED, & SIGNED or handwritten by T (or extrinsic ev shows intent)
2. that describes items and recipients w/ reasonable certainty
3. may be executed BEFORE OR AFTER the will
4. directing disposition of tangible personal prop (NOT cash/property used primarily in trade or biz) valued NOT more than 5k each, 25k aggregate (1 item +5 to residuary)
-benefi dies and no clear 2nd choice, gift lapses

*T can make subsequent handwritten/signed changes w/o witnesses, But LAST WRITING CONTROLS

25

!!
Theories to get Parol evidence IN:

1. incorporation by reference
2. Facts of indie legal significance
3. CA 6132 for LIMITED tangible personal prop
4. (if Trust) UTATA

PE not easily admitted bc aim to protect integrity of statute of wills; need proper theory

26

!!
Pour over Wills/Provision

part or all of T's ESTATE is devised to the trustee of the inter-vivos TRUST, to be administered pursuant to terms of that trust; lots of details missing from Will so Get Trust admitted by:
1. incorporation by reference
2. independent significance
or
3. UTATA (Uniform Testamentary Additions to Trust Act) -Pour over provision is valid by statute IF
a. valid trust
b. in existence before or at time of execution of will
modernly - can be later

4. RARE - 6132 (if LIMITED pers Prop)

27

! Elements of an Attested Will

A. Traditional Formalities - CA Probate Code
1. Writing
2. SIGNED by 1: Testator, or someone at T's direction or conservator pursuant to court order (nicknames ok, X ok if illiterate)
3. [contain T's sig] OR in PRESENCE of 2 witnesses AT SAME TIME!!!
SOME states: if T signed alone, he can "ACKNOWLEDGE" his signature or "his will" in presence of 2 witnesses later
CA - must sign/acknowledge w/ 2 Ws same time, cannot do 1:1
4. Witnesses SIGN will during T's lifetime (need not sign at same time as e.o.)
5. Witness understands they are signing is T's will

EXCEPTION IF T dies post Jan 1 2009!
B. CA HARMLESS ERROR Test: will excuse 3,4,or 5 and admit into probate if:
proponent of will establishes by CLEAR AND CONVINCING evidence that @ time T signed, he intended the will to constitute his will

C. More CA exceptions:
-witnesses don't have to sign in presence of each other
-Ws do not have to sign in presence of T
-T does not have to declare its his will to Ws, but they should understand
-can sign anywhere in will doc
-W can sign before T, or vice versa, unclear
(SPLIT)
T must sign 1st
VS T must sign before W leaves

ISSUE? On exam defend will w/
Substantial Compliance Doctrine
OR
CA Harmless Error Test (CC evidence)

28

Substantial Compliance Doctrine

if there is no fraud or mistake, the will is validly executed if there is substantial compliance w/ the Probate Code (even if not literal compliance)

29

Presence

1. sight presence (can see T sign)
or
2. Conscious Presence (w/in W's hearing and knowledge of what is being done)

30

Interested Witness

Witness who is benef under will (NOT in fiduciary capacity/trustee) deemed:
1. CL - Incompetent and will invalid
vs
2. CA - rebuttable Presumption procured devise by duress, menace, fraud or undue influence

Will is NOT invalid, BUT NEED 2 disinterested Witnesses or Rebuttable presumption arises of wrongdoing

Fails to rebut? takes amount that would be given by intestacy

31

Conditional Will

one whose validity is made conditional by its own terms; (my will if I die on Vacation) probated only if condition satisfied

32

holographic Will

Requires:
1. Material provisions be in T's handwriting and
2. SIGNED by Testator (anywhere on doc)

Valid? MUST BE
1. signed by T anywhere in will
2. material provisions in T's own handwriting
-gifts made, beneficiary names
-executor NOT material
-W signatures irrelevant

CA- DATE NOT REQUIRED, but can be problematic. multiple wills? non dated holograph portions invalid to extent of inconsistencies, unless timing established; (capacity problems too!)

*need NOT say on face "this is my last will..." but Can...and can be NON handwritten (form will)

EXTRINSIC EVIDENCE admissible to show T's intent:
-List of names/stuff, but told ppl it was Will
-series of letters integrated

33

Probate Law for Will/ Conflict of Laws
!

Will is admitted into probate in CA if the will COMPLIES with the formalities of execution of:
1. CA Law formalities
or
2. Law of place where will was executed
or
3. Law of place of T's domicile @ time of execution

34

Codicil !!

Testamentary instrument executed subsequent to the execution of a will, intended to modify, amend, or revoke a will, but MUST BE in compliance w/formalities of a Will (ie needs signature, CA probate code) or else invalid

REPUBLICATION
!!! Codicil "Republishes" will: causes it to speak from the new date codicil is executed "down dating";

USE for:
A. fixes Pour over trusts incorp problems if modified after will;
B. Or prevents pretermission:
1. Cod REpuplished will, now down dated AFTER child born
OR alternatively
2. Codicil executed AFTER child Born

REVOCATION
Made 1st. will 2. codicil 3. revokes codicil
rebuttable presumption meant to revoke codicil ONLY
VS
Made 1st. will 2. codicil 3. revokes Will, rebuttable presumption intended to revoke BOTH

35

Elements of Revocation

3 ways
A. By subsequent instrument
Express Revocation - "I revoke and declare will 2"
vs
Implied - Will 2 totally disposes of T's estate, and nothing left for 1 to do..

B. By Physical Act
1. Will must be burned, torn, cancelled, destroyed or obliterated
Cancellation (lining out or crossing through w/pen)
[CANNOT increase a co-beneficiary's gift using cancellation of other co-beneficiary]
OR
Obliteration (erasing)

A and B. T must have SIMULTANEOUS INTENT to REVOKE; Act and Intent Coincide

3. Act done by T or by someone in his presence, at his direction


C. By Operation of Law (divorce)


*REVIVAL
1. CL - revocation of codicil would revive original document
vs
CA - will 2 destroyed, will 1 NOT auto revived, ONLY revived if
1. T manifests CLEAR intent to Revive 1 (oral statements)
or
2. Codicil revoking 2 displays intent to revive 1

36

Interlineations

new writing between lines
! Remember all material terms (name/prop) must be in writing to be holographic valid! if NOT valid, gift cancelled in orig too bc struck out
UNLESS
DRR: T intended some gift so give the lesser orig

*if orig is MORE $, DRR will not work bc not intent of T!

37

Mutilated Wills

if find mutilated will at T's death, last seen in T's possession, rebuttable presumption he did it w/ intent to revoke (his safe deposit box)

38

Duplicate Wills

duplicate originals - 2 original wills, not copies, 2 signatures
if 1 is revoked, 2nd is revoked as a matter of law

39

!! Omitted Spouse/Domestic Partner

Married after execution & not provided for; Same rules for Domestic Partners

Result -
Spouse receives STATUTORY share of D's estate EQUAL in value to that which spouse would have received if D died INTESTATE:

1. 1/2 of Community Prop owned by D at death or in Trust (spouse now has 100% CP, bc owned 1/2)
2. 1/2 of quasi CP (spouse now has 100% QP)
3. share of SEPARATE prop, but no more than 1/2
3b.
-IF no issue, parents, siblings, or issue of deceased siblings--ALL to survivor spouse
-IF D had 1 child, OR issue of predeceased child, 1/2 to survivor spouse, and 1/2 to child or child's issue
-IF D has 2 or more surviving children, or issue of predeceased children, 1/3 to spouse, 2/3 to children or issue
-IF NO issue, but YES Parents or Parent issue, 1/2 to parents/issue, 1/2 to spouse

UNLESS
1. omission INTENTIONAL and apparent from doc
2. provided for spouse outside Test docs in LIEU
3. Omitted spouse signed WRITTEN WAIVER:
anytime, a. w/ full disclosure & b. indie counsel
(voluntary relinquishment of a known legal right)
OR
signed written waiver w/ full knowledge of finances OR waiver FAIR
Can NEVER be Unconscionable waiver!

**BUT TAKES STATUTORY SHARE in lieu of OTHER GIFTS!!

40

Domestic Partner

1. of same sex or opposite sex
2. AND at least 1 person is 62 yrs old
AND 3. partners filed declaration w/ SoS
CA - same rights as marrieds

41

Final Dissolution of Marriage/Partnership

1. by law, revocation of devise if annulment or final dissolution or termination
2. Legal separation does NOT COUNT!
3. Devise reinstated if Will is unchanged and
re-marry/partner
*UNLESS Will states otherwise (takes no matter divorce)

42

Ademption by Extinction !

A SPECIFIC bequest is Adeemed if the property given is not part of T's estate at time of death.
*try to argue general to avoid problem

CL: specific gift FAILS bc T did NOT own property at T's death
vs
CA: look to INTENT a 2nd time to determine if T intended gift to fail;

CA - NO Ademption by extinction when:
-Securities chg form w/o act of T; GET newStock
-Conservator sells off assets; GET net price of land
-eminent domain award (paid after death)
-insurance award (paid after death)
-Installment payments for sale of prop where T holds deed of trust as security for sale
(paid after death)

* Installment payments paid DURING lifetime ONLY PRESERVED (no extinction) if you can easily TRACE to bank account, showing T's intent to preserve
-try to classify as general to avoid this problem
OR try to trace!

43

Classification of Gifts
specific v. general!

Look to INTENT of T
1. Specific devise - gift of Unique particular item distinct from all other objects in the estate
-T had objective manifestations of intent that X takes this item & nothing else "MY stock"
*Ademption by Extinction issue!
vs
2. General Devise - general economic benefit payable out of general assets of estate, nothing unique "Stock"; executor an give shares or FMV or shares
*Ademption by Satisfaction

3. Demonstrative Devise - hybrid specific/general
a. 1st specific gift
b. if not sufficient, balance comes from general assets

4. Residuary Devise - All other prop NOT expressly disposed of in will (balance/residue)

44

Ademption by Satisfaction

Satisfaction= T gives beneficiary an intervivos (living) down-payment on a devise to be given in WILL at death;
Requires WRITING by T, acknowledgment by B

IF down-payment found to be satisfaction, later devise is reduced by payment:
1. Will itself provides for a deduction on the intervivos gift
2. T declares in contemporaneous writing that gift is satisfaction
3. Beneficiary acknowledges in writing the gift is satisfaction (at any time)
4. Prop given in satisfaction is the same prop given as specific devise to beneficary
#4 is satisfaction AND extinction (bc prop gone)!

!! -if beneficiary dies 1st, balance of devise remains for his B's heirs !! (diff than advancement)

-Value if not cash? conclusive if expressed in contemporaneous T or Benef writing,
otherwise FMV at devise

45

Advancement

intervivos down payment made by an INTESTATE to an "heir apparent"
-same rules as Satisfaction
1. T declares in contemp writing that gift is satisfaction
2. Heir acknowledges in writing that gift is advancement (at any time)

!! -if heir dies 1st, heir apparent NOT treated as if took advancement (diff than satisfaction)

46

Breach of Contract

Contract NOT to revoke will, can give rise to breach of K claim against estate if changed;

*C/A accrues when T dies UNLESS T engages in conduct that would be fraud on promisee (enjoin sale or keep funds)

CA 5 ways
1. Will or instrument state material provisions of K (ex. in consideration of...I promise...)

2. Express Reference in Will/instrument to K
-Terms may be established by extrinsic evidence
-SoF is not an issue here

3. writing signed by decedent evidencing K

4. Clear/Convincing Ev of an Agmt betw Decedent and TP for benefit of Claimant, enforceable in equity (Estoppel)

REMEDIES -
1. Damages from estate
2. Specific Performance
3. Constructive Trust - probate will as is and make devisee CTee to transfer to promissee

47

Joint Will

will of 2 person in 1 document
-need NOT be reciprocal
-will probated at EACH death

*NO presumption of K, but may be ev

48

Mutual Will

Separate reciprocal wills of 2 or more ppl that promise to leave everything to each other

*NO presumption of K, but may be ev

49

Community Property

All Prop acquired during marriage or partnership while domiciled in CA that is NOT separate prop

50

Separate Property

Prop acquired BEFORE and DURING marriage/partnership, by gift, bequest, devise, and descent, together w/ rents, issues, and profits thereof

51

Quasi Community Property

PROBATE DEFN:
ALL personal prop (wherever), & all real prop situated IN CA, acquired by a decedent while domiciled elsewhere that would have been CP if decedent had been domicile in CA at time of acquisition

DEATH defn: = QP is limited to REAL Prop in CA
vs
Divorce Defn = ALL real property, wherever located

-In absence of death/divorce, it is treated as separate property. So if Acquirer survives spouse, property remains separate

52

Spousal/Partner Protection

Protection based on CA CP law:
1. Protection re: community prop
T can only dispose of his 1/2 of CP

2. Protection re: quasi community prop
T (assuming he acquired it) can only dispose of his 1/2 of QCP; if he outlives spouse, he owns it all

3. Widow's Election (includes Partner)
If T attempts to dispose of more than 1/2 of CP or QCP, may invoke ELECTION:
a. Take Under the Will - accept will's gift in lieu of statutory right
OR
b. Take Against the Will - renounce all benefits in will and confirm statutory right of 1/2 cp and qcp

4. Protection re: illusory transfers of QCP and Widow's election: A Living transfer by T (acquriing spouse) of QCP to a TP w/o Consideration is allowed! Spouse had mere expectancy but not a prop interest
EXCEPT
transfer NOT proper if deemed ILLUSORY (T retained some interest/control) and survivor invokes widow's election requiring recovery of QCP to estate

53

unworthy Heirs

1. Killer
Person who feloniously and intentionally kills the decedent may not take ANY benefits by will or otherwise; Killer deemed to Pre-decease T & Anti Lapse will NOT apply

proof:
1. Criminal conviction (including plea)
OR 2. Probate court determination of built by Preponderance of the Evidence

-Joint Tenancy? Killing severs JT so no right of Survivorship in other 1/2

2. Elder Abuse:
Person liable by Clear and Convincing evidence of elder abuse will be treated as if predeceased D. Physical abuse, Fiduciary abuse, neglect

3. No Contest Clause - will divest any party that unsuccessfully contests a will containing such a clause. Will is enforced unless B, w/ reasonable cause, brings contest on grounds of forgery, revocation, or invalid transfer to person who drafted instrument

54

Intestate Scheme & Order

!!!

"repeat" Survivor Spouse:

1. 1/2 of Community Prop owned by D at death or in Trust (spouse now has 100% CP, bc owned 1/2)
2. 1/2 of quasi CP (spouse now has 100% QP)
3. share of SEPARATE prop, but no more than 1/2

-IF no issue, parents, siblings, or issue of deceased siblings--ALL SEP to survivor spouse
-IF D had 1 child, OR issue of predeceased child, 1/2 to survivor spouse, and 1/2 to child or child's issue
-IF D has 2 or more surviving children, or issue of predeceased children, 1/3 to spouse, 2/3 to children or issue
-IF NO issue, but YES Parents or Parent issue, 1/2 to parents/issue, 1/2 to spouse

!! NO surviving SPOUSE? -
1. Issue (adopted children = natural children)
2. Parents
3. Issue of Parents (siblings)
-
4. Grandparents
5. Issue of Grandparents
6. Predeceased Spouse's Issue (step children)
7. Next of kin
8. Parents of predeceased spouse (former in laws)
9. Issue of parents of predeceased spouse
10. Escheat (to State of CA)

55

Manner of Taking
(Per Capita & Representation Problems)

!!!

If issue takes by any method, and no manner of taking is specified - follow 240 of Probate Code:

1. Issue of SAME degree take "Per Capita"
(equally and in their own right)

2. Issue of more REMOTE degree take
"Per Capita with Representation" (equally stepping into shoes of generation above)
1. Make distribution at 1st level someone is living and give shares to ALL LIVING in that generation
AND
2. give to deceased members of THAT generation who leave issue

3. "Per Stirpes" or "by right of representation" or "by representation"
-Make equal distribution to 1st generation EVEN IF everyone is dead, so long as they left issue!!

56

Adoption & Step Children

A. adoption of child severs relationship w/ natural parents
UNLESS - child is adopted by spouse of natural parent, or natural parents died before adoption

Ex. H1 and W marry and have C, H1 dies. W remarries H2 ,who adopts C. C can inherit from H1 and H2.

B. StepChildren are treated as "adopted" if
1. relationship begins in child's minority
2. rel continued through parties lifetimes
and 3. established by Clear/Convincing Evidence that T would have adopted but for legal barrier

C. Equitable Adoption (By ESTOPPEL)
Parents hold themselves out as Parent/child

D. Marital status of parents is IRRELEVANT - issue is parent/child relationship

in Domestic Partnership!!! - non birthing parent has relationship by presumption if:
1. child born during DP
2. DP lawfully formed AFTER child's birth
AND non birthing DP named on Birth Cert OR
Non birthing parent promises/ordered by ct to pay child support

HALF BLOOD - 1 common parent, not 2:
children inherit same as full blood

57

Posthumous Children (in womb)

child conceived during lifetime of Intestate or Testator, but born AFTER he dies
deemed "Heirs" of estate and beneficiaries of will

58

!! Lapse and Anti Lapse Statute
(dead ppl cannot take)

Both apply to WILLS and revocable TRUSTS

Rule of Lapse -
CL -
if beneficiary does NOT survive Testator, SPECIFIC devises LAPSE, UNLESS a contrary intent is expressed in will; Gift goes to residues, if any; otherwise goes intestate (dead ppl don't take)

UNLESS
CA Anti Lapse Statute-
(applies to GIFTS too) NO Lapse if
1. Devisee who predeceased T was "KINDRED" (blood relative) of T or of T's surviving, deceased, or former spouse, or DP (not spouse)
AND
this predeceased devisee leaves ISSUE -
THEN- issue will step into shoes of Predeceased B and take per Probate 240 capita/rep rules
(unless will has contrary intent in case of death)
-issue takes by right of rep

59

CA Uniform Simultaneous Death Act
&
120 Hour rule

WILL
1. USDA - If devise is dependent on 1 surviving the other, and we cannot tell by Clear & Convincing evidence who died first (by even 1 second)...
Result - deem that 1 person did NOT survive the other and gift may lapse (or not if kindred)

ex. sever JT; sever CP and QCP,
alternative beneficiary gets insurance OR if none, Insurance goes to ESTATE residue or if none, heirs
UNLESS - !!!!
if insurance premiums paid for w/ CP or QCP and Spouses, 1/2 goes to H's estate and 1/2 to W's estate.

INTESTATE
2. For any heir to take from INTESTATE, heir Must survive Intestate by 120 hours (as determined by Clear/Convincing ev), find other heirs
*WILL NOT APPLY if Prop would go to State..

60

after acquired property

acquired after the will is executed; included in estate and disposed of by will

61

Increases of estate

BEFORE DEATH -
-stock dividends/splits paid during T's lifetime go to beneficiary of stock, if stock owned by T at his death

AFTER DEATH -
1. Specific Devises: B take ALL increases (stock dividends, splits, rents, cash dividends, interest on indebtedness)
vs
2. General Devises: generally B does NOT get increase, UNLESS B will take interest on general pecuniary gifts (expressed in $) for 6 months

62

Abatement

!!

process by which gifts are decreased
! Ex. omitted child/spouse/DP for statutory share

ORDER for OMITTED child/Spouse/DP
(no matter specific/general):
1st. abate prop NOT passing by will OR revocable trust
2nd. abate from all beneficiaries of Ts will AND revocable IV trust IN PROPORTION TO VALUE OF GIFT RECEIVED

EXCEPTION: for specific gifts, bc would defeat "OBVIOUS INTENTION" of T by language of docs


!!
ORDER DIFF for GENERAL DEBTS of D:
1. intestate property
2. residuary gifts
3. general gifts to non relatives
4. general gifts to relatives
5. specific gifts to non relatives
6. specific gis to relatives
(Demonstrative gifts treated as specific)


63

Exoneration

Defn: debt extinguished
if Prop devised subject to encumbrance:

1. Tradl-Auto Exoneration; required to pay debt before passing gift
vs
2. CA - no automatic exoneration, devisee takes subject to encumbrance unless will says otherwise;
"pay all my just debts" NOT SUFFICIENT

-if Gift is exonerated, in absence of language in will no abatement of other specific gifts

64

gift causa mortis

gift made in contemplation of imminent death (personal property ONLY, NO real property); if donor survives peril gift is revoked.

1. Donor must DELIVER to donee
Actual/Manual delivery: transferred
vs
Symbolic delivery: something, representing gift is given to donee (ex. writing evidencing ownership)
vs
Constructive Delivery:
CL VIEW: opening of access to a room wherein is gift (key or treasure map)
vs
MODERN view: donor has done everything possible to effectuate delivery and no issue of fraud and mistake

65

Essay Approach

1. Validity of will (attested, Holo, capacity, conflicts of law)
2. Revocation of Will (by act/will/law, DRR, revival)
3. Components of will (repub by codicil,integration, reference, indie sign)
4. Distribution of funds (classify gift, ademption, abatement, lapse)
5. Intestate (per capita, Rep, spouses, sim death, 120)
6. Family Protections (omitted spouse/kid)
7. Bars to succession (killing, abuse)

66

Totten Trusts

Leave remainder of bank account funds to B

67

residuary

gift of what remains of T's property after paying debts, expenses, and taxes, and satisfying the specific, general, and demonstrative gifts.