Wills Flashcards
1
Q
What is a will?
A
a legal document used to dispose of the decedent’s property
2
Q
What is testate and intestate?
A
testate: the decedent dies with a will
intestate: the decedent dies without a will
+It is possible that some property is intestate if the property is not covered by a will
3
Q
What is a codicil?
A
an amendment to an existing will made by the testator to change, explain, or republish his will. It must meet the same formalities as a will or holographic will
- think of it as curing defects in the prior will
- If the codicil is properly executed, it is the new republication date
4
Q
What is intestate succession?
A
the default estate plan developed by the legislature when the decedent dies intestate
5
Q
What do you call the people who are entitled to receive property by intestate succession? The people who will receive property according to the will?
A
heirs
devisees
6
Q
Who are collaterals?
A
relatives through an ancestor (siblings, cousins, aunts etc.)
7
Q
What is representation?
A
when children of a parent stand in the parent’s place for purposes of intestate succession
8
Q
What happens if there is a simultaneous death of the decedent and heir?
A
Common law: the heir’s survival must be proved by a preponderance of the evidence
Uniform Simultaneous Death Act: when there is insufficient evidence of who died first, the property will pass as though each had predeceased the other
9
Q
What is the 120 hour rule?
A
Under the USDA, an heir must be proven by clear and convincing evidence to have survived the decedent by 120 hours. In CA, this rule only applies to intestacy, not wills
10
Q
What is quasi-community property?
A
property acquired by a marital couple while living out of state that would have been community if acquired in CA
11
Q
Under intestacy, how much of the decedent’s community property is the surviving spouse entitled to?
A
the surviving spouse is entitled to the decedent’s one-half of the community property
12
Q
If the decedent is not survived by decedent, parent, or siblings, how much is the spouse entitled to?
A
all of the separate property
13
Q
If the decedent is survived by one lineal descendent, or by a parent or issue of the parent, how much is the spouse entitled to?
A
the surviving spouse gets half of the separate property
14
Q
If the decedent is survived by more than one lineal descendent, how much is the spouse entitled to?
A
the surviving spouse gets 1/3 of the separate property
15
Q
What happens if a decedent dies intestate with no heirs?
A
the property escheats to the state
16
Q
How do you disinherit children?
A
this must be done by a properly executed will. Disinherited heirs are treated as if they predeceased the decedent
17
Q
What happens when there is a step-parent?
A
A parent-child relationship between the step-parent and child is formed. This does not prevent the child from inheriting from the other biological parent
18
Q
What is the 300 day rule?
A
if a child is born within 300 days of the husband’s death, there is a rebuttable presumption that the child is the husband’s and the child will inherit as though it was born before the father died
19
Q
What is the per capita with representation method? (CA)
A
1) divide the estate equally at the first generation where a member survives the decedent
2) if there are deceased members at that generation, their shares drop down to their surviving issue
3) if a deceased member has no surviving issue, that member does not take a share
20
Q
What are the two methods of calculating the intestate shares of issue? When are they used?
A
per capita (if surviving issue are all of equal degree of kinship) per capita with representation (if surviving issue are of unequal kinship)
21
Q
What are the three formal execution requirements (formalities) to have a valid will?
A
1) signed writing;
2) witnesses;
3) testamentary intent
Courts take either a strict or relaxed approach
The will can be signed by someone else in the testator’s presence and at his discretion
22
Q
What is the signed will requirement?
A
the will must be written/typed and signed by the testator. The signature can be on any part of the will (though a court may not give effect to words after the signature). A formal signature is not required and it just needs to indicate the testator’s desire to sign
23
Q
What is the capacity requirement for a testator?
A
the testator must be at least 18 and of sound mind
24
Q
What is the witness requirement?
A
there must be 2 witnesses present and each must sign the document (within the testator’s lifetime)
25
the testator must sign the will in the presence of the witnesses
o
26
What are the two approaches to the presence requirement?
line of sight (traditional)
conscience presence (CA)
27
What is the line of sight approach?
the witness and testator must observe or have the opportunity to observe the signing of the will
28
What is the conscience presence approach?
the signatures of the witnesses are valid as long as they are aware that they are signing the testator's will as witnesses
29
What is an interested witness?
A witness who has a direct financial interest under the will
30
What is the common law and modern approach to interested witnesses?
common law: an interested witness was not competent to witness the will
modernly: there is a rebuttable presumption that the interested witness exerted undue influence. If not rebutted, then the interested witness can still receive the amount that he would under intestate succession
31
What is the testamentary intent requirement?
the testator must have the present intent to make a testamentary gift
32
When is competency measured?
competency is measured at the time of the signing. Subsequent incompetence will not invalidate a will
33
What is the standard used in CA for determining whether the will adequately complied with the will formalities?
substantial compliance (harmless error doctrine). The court will admit the will to probate if there is clear and convincing evidence that the decedent intended the document to serve as her will
34
What is the exception to the substantial compliance (harmless error doctrine)?
CA courts do not apply this approach to the testator's signature
35
What is an informal, handwritten will called?
a holographic will
36
What are the requirements of a holographic will?
[S-TI-MP]
- signature
- testamentary intent
- The material provisions must be in the testator's handwriting (e.g., who takes, what they take, in what shares)
+It does not have to be witnessed.
37
What are some will substitutes?
- joint tenancy
- revocable trust
- pour-over-will
- payable on death clause
- deeds
38
What does it mean for a will to be ambulatory?
wills are capable of being changed at any time until the testator's death
39
What are the three ways to revoke a will?
SPO [like Spoelstra getting mad]
1) by Subsequent instrument
2) by Physical act
3) by Operation of law (e.g., divorce)
40
What happens if a later writing (codicil/will) is inconsistent with a prior will?
implied revocation
So long as it is validly executed, the later conflicting document (codicil/will) controls
41
How does a testator revoke a will through physical destruction?
such as through intentional:
- tearing
- burning
- crossing out the document
42
What happens if a will, once known to exist, is lost?
there is a rebuttable presumption that the testator revoked the will by physical act.
Duplicate originals can be used by the proponent but a copy of the original cannot be used
43
What happens to a will upon divorce or dissolution of a registered domestic partnership?
all will provisions in favor of the former spouse or partner are revoked, unless there is evidence that the testator wanted those provisions of the will to survive
44
What happens to codicils attached to the will when a will is revoked?
the codicil is also revoked
45
What happens to the will when the codicil is revoked?
the underlying will is revived in its original form
46
What happens if there is a will, a new will, then the new will is revoked?
the revocation of the second will does not automatically revive the first will. The first will needs to be re-executed to take effect or there needs to be extrinsic evidence to show the testator intended for the first will to be revived
47
What happens if a testator revokes a will on the basis of mistake (of fact/law)?
Dependent relative revocation (DRR) will invalidate the mistaken revocation
48
What is the key approach courts take to interpreting a will?
courts follow the plain meaning (even if the testator meant something else)
+extrinsic evidence is inadmissible and the court will not look beyond the four corners of the document to determine meaning
49
When is it permitted to incorporate an extrinsic document that is not testamentary in nature?
Ex: "This will makes bequests in accordance with the list provided in my sketchbook, which I keep in the bottom drawer of my desk.”
DIE
- the Document is Described in the will with sufficient certainty as to permit its identification
- the testator Intends the document to be incorporated into the will AND
- the document is in Existence at the time of execution
50
A will might leave a certain gift to “the man who is my niece’s spouse at the time of my death.” The law does not presume that the niece would marry or divorce merely to complete the terms of the will, so her marriage has independent significance and would be valid.
o
51
What is CA's anti-lapse statute?
If the gift was made to a blood relation of the testator (or of his current or former spouse or domestic partner) who predeceased the testator but left issue (children, grandchildren) who survived the testator, the issue take the gift
Ex: a former spouse would not qualify
52
What happens if there is a class gift and the lapsed recipient is not protected by the CA anti-lapse statute?
the gift will not lapse but will go to the surviving class members
53
What is a a gift of a particular piece of property?
specific gift
54
What is a a gift of property satisfied from general assets
general gift
55
What is a general gift from a particular source?
a demonstrative gift
56
What is ademption by extinction?
when a will makes a specific devise of property, but that property is no longer in the estate at the testator's death
57
What are the two rules when dealing with ademption by extinction?
identity theory: the specific devise was "extinct" and the devisee takes nothing
Intent theory (CA): look to the testator's intent at the time that she disposed of the property. Courts will try to avoid ademption if possible by identifying replacement property
58
What is it called when the gift was already transferred through an inter vivos transfer?
ademption by satisfaction
59
What is a patent ambiguity?
an ambiguity that is ambiguous on the face of the document
Ex: Listing the address as 123 Oak and later as 321 Oak
+like on its (ph)face
60
What is a latent ambiguity?
an ambiguity that is not obvious on its face
Ex: devise of property "to my brother" (but testator has multiple brothers)
+LATEr you will find out there's a problem
61
What is the approach in CA and most courts for resolving ambiguities?
courts allow patent and latent ambiguities to be resolved with reference to extrinsic evidence
62
What must be shown to reform an unambiguous will due to mistake?
clear and convincing evidence must be shown to establish that there was a mistake
63
What is an elective share?
In common law states, a surviving spouse who is unhappy with his or her share under the will can take a forced share (which could disrupt the gifts to other beneficiaries), Often 1/3.
64
What happens if there is a marriage/domestic partnership after the execution of a will?
works as a partial revocation to provide for the omitted spouse. In such cases, a spouse or domestic partner who is not mentioned in a will is entitled to an intestate share of the testator’s estate
the share taken from the decedent’s separate property cannot exceed one-half the value of the separate property in the estate (but the surviving spouse still keeps 1/2 of the community share)
65
What was the common law view of an advancement to a child?
Any lifetime gift was presumed to be an advancement of the child's intestate share. The child had the burden to show that the gift was an absolute gift
66
What is the CA view of whether a gift is an advancement?
A gift is an advancement only if:
- the decedent declared in a contemporaneous writing that the gift was an advancement; OR
- the decedent's or heir's writing indicates that the gift should be taken into account when computing the division of property of the decedent's estate
67
How do you calculate advancements for children?
1) add the value of the advancement(s) back into the intestate estate
2) divide the resulting estate by the number of children taking
3) deduct the child's advancement from the child's intestate share
68
What happens when there is an unintentional disinheritance?
the omitted child receives an intestate share
69
What is the slayer rule?
a person cannot profit from murdering another. Here, it means that the beneficiary will be treated as if he predeceased the testator.
Courts do not apply the slayer rule in involuntary manslaughter or self-defense cases. The murder must be intentional and felonious
CA does not apply the anti-lapse doctrine to save a gift to a killer in favor of the killer's issue
70
What is required to disclaim a testamentary gift?
- in writing, signed, and filed with the court AND
- identify the decedent, describe the interest to be disclaimed, and define the extent of the disclaimer
- disclaimed within 9 months of the testator's death
71
In California, someone who is convicted of financial exploitation, abuse, or neglect of a person under their care is prohibited from inheriting from that person.
o
72
Who has standing to challenge a will?
only interested parties (anyone who might get a financial benefit under the will, or someone who would take under intestate succession, but does not take under the will
Ex: someone who was a beneficiary under a prior will of the decedent
73
**What can the contestant ask to show that the testator lacked general testamentary capacity at the time of the execution of the will?**
Ask whether the testator had the ability to know:
- the nature of the act
- the nature and character of her property
- the natural objects of her bounty
- the plan of the attempted disposition (closest surviving family members like spouse/children
74
What is a false belief to which the testator adheres despite all reason and evidence to the contrary
insane delusion
75
How does a contestant show that someone has an insane delusion?
- measure the testator's insane delusion against that of a rational person in the testator's position. If a rational person could not have reached the same conclusion, it is an insane delusion
- show that the insane delusion was a "but for" cause of the testamentary disposition
76
What is undue influence?
a third party effectively controlled the testator's decision-making process through excessive persuasion
77
What are factors to show undue influence?
VIIE
- Victim's Vulnerability
- Influencer's apparent authority
- Influencer's actions or tactics
- Equity of the result (by itself, is insufficient)
78
When is there a presumption of undue influence?
U CR-AP
when:
- the gift is Unnatural
- the principal beneficiary has a Confidential Relationship (like lawyer, doctor) with the testator AND
- the principal beneficiary Actively Participated in making the will
+Once this is all shown, then the burden shifts to the beneficiary to show by clear and convincing evidence that there was no undue influence
+exceptions: property is less than $5k, transferor and beneficiary are blood relative or cohabitants
79
What is the consequence of undue influence?
the beneficiary is treated as if he or she predeceased the testator to the extent the gift exceeds the beneficiary's intestate share
80
What are some of the beneficiaries who CA rebuttably presumes are invalid?
- the drafter of the will
- a fiduciary who transcribed the will or caused it to be transcribed
- a care custodian of the testator who is a dependent adult, if the will was executed when services were provided or within 90 days thereafter
- a person connected to the drafter, transcriber, or care custodian
- a partner or employee of the law firm of the drafter or transcriber
+All can be rebutted through clear and convincing evidence
81
What are the requirements to demonstrate fraud occurred?
The beneficiary made the representation with:
- the intent to deceive the testator; AND
- the purpose of influencing the testamentary disposition
- and the fraud does in fact deprive the testator
82
What is fraud in the inducement?
misrepresentation that causes the testator to make a different will than the testator would otherwise made
Ex: promising to convey the property to a friend, but the beneficiary has no intent to do this
83
What is fraud in the execution?
Misrepresentation as to the character or contents of the will
Ex: testator has bad eyesight and the will says something different
84
What is the most common remedy for fraud?
a constructive trust
85
What is probate property?
property that passes by will or intestate succession
86
How does non-probate property pass?
instruments such as:
- deed
- trust
- joint tenancy
- POD contract
87
What is the basic probate process?
1) identify non-probate property and the rest is probate property
2) identify testate and intestate property
88
Where is jurisdiction proper to handle the decedent's estate?
the county in which the decedent was domiciled at the time of death
89
Unless the will says otherwise, what is the order in which gifts will be abated (reduced)?
[I Really Got Stiffed]
1) Intestate property (least protected)
2) property in a Residuary gift
3) General bequests to non-relatives then relatives
4) Specific bequests to non-relatives then relatives
90
When must a probate be challenged?
within 120 days after probate is opened. Otherwise, the claim is barred
91
What is a forfeiture clause?
A clause in the will that states if a beneficiary contests the will, she will lose her share under the will.
It only applies to direct contests (forgery, lack of execution, capacity, duress, fraud, undue influence) that lack probable cause
92
What is a personal representative appointed by the court called?
estate administrator
93
What is a personal representative named in the will called?
estate executor
[think of the estate administrator as a government bureaucrat]
94
What are the duties of the personal representative?
- inventory, appraise, and manage the estate
- contact interested parties, including creditors
- satisfy debts (taxes, burial expenses, family support)
- distribute remaining assets
- close the estate
95
What are the duties owed by the personal representative?
as a fiduciary, the personal representative owes the duties of loyalty and care
No self-dealing or business with the estate
But the personal representative is entitled to reasonable compensation from the estate
96
What happens if the witness requirement is not satisfied?
the will can still be treated as properly executed if the proponent of the will establishes by clear and convincing evidence that the testator intended the document to be his will at the time he signed it
97
What are the traditional undue influence requirements?
[Sara Made Orange Chicken]
- susceptibility to influence
- motive
- opportunity
- causation
98
When are papers integrated into the will? [doctrine of integration]
-they were Present at the time of execution of the will AND
the testator Intended them to be part of the will
Exs: papers folded together, stapled, papers connected by a sequence of thought
99
What happens when there is a devise to A and B and B is crossed out?
B's portion goes to the will residue. The portion does NOT go to A
100
When writing the essay, whenever a gift is devised that consists of a house, car, stock, but does not contain a specific address or model then...
argue both ways (specific or general gift)
101
What is exoneration?
exoneration applies when a gift of property is made that is subject to an encumbrance, such as a loan, and the will requires that the encumbrance be paid off so that the devisee takes the property free and clear
102
What was the traditional rule on lapse?
traditionally, and in some jurisdictions, when a beneficiary predeceased the testator, the gift lapsed and fell into the residue/intestate succession
103
What is the order in intestate succession when a person dies without a spouse?
- issue
- parents, if no issue
- issue of parent, if none of the above
- grandparents, if none of the above
- issue of grandparents, if none of the above
- issue, of predeceased spouse/partner, if none of the above
- next of kin
104
What is required in order for the dependent relative revocation(DRR) doctrine to reinstate a revoked will?
The testator would not have revoked the will but for the applicable mistaken belief.
+This applies also when the second will is actually invalid and the first will is revoked
+The doctrine should be applied only if doing so honors the testator’s true intent. Therefore, if recognizing the revocation and not reviving the will better reflects the testator’s intent (e.g., the gift is decreased in the new will), do not apply DRR
105
What is the approach to a wills essay?
1) discuss the distribution without and with a valid will
2) discuss the validity of the will (one by one) (requirements, defenses, revoked?)
3) what kind of gift (specific, general, demonstrative, residuary, intestacy)
106
What happens if a will is not validly executed in another state and the decent later is domiciled and dies in CA?
the will is treated as valid if it meets the CA requirements
107
What are things to talk about when a will is revoked?
- partial or complete revocation
| - express or implied revocation
108
A validly executed codicil can incorporate an invalid will and make the terms of the will valid
o
109
What is abatement?
if the assets of the estate are insufficient to pay all debts, a court will "abate" the gifts to pay the debts
110
What happens if T creates a will giving his property to “my brothers” upon his
death. His brother C died before he created the will.
Neither C nor his issue would be entitled to a share of the property upon T’s death. Only T’s other brothers, A and B, who were alive at the time of the will creation would take the property.
111
When is an omitted spouse entitled to an intestate share?
Generally the omitted spouse is entitled to an intestate share UNLESS:
- the omission was intentional
- the spouse was given property outside the will in lieu of a disposition in the will
- the spouse is party to a valid contract waiving her right to a share in the estate
112
What are the requirements to be an omitted child?
-the child is born/adopted after the will is created
+A child may have been omitted, but if the codicil happens after the child's birth, they are no longer deemed an omitted child
113
What are ways to contest a will?
- insane delusion
- undue influence
- testamentary capacity (18 and sound mind)
114
What is per stirpes?
Not the typical form of distribution, but possible if that is what the will calls for. In per stirpes, the issue take in equal portions the share their deceased ancestor would have taken, if living
115
What is an example of a holographic codicil?
A codicil that is altered with "null and void" and signed by the testator because this is a material provision
116
What is the approach to revival after a later revocation or codicil?
Under common law, the revocation of a will or codicil that revoked another will automatically revived the original will
In CA, automatic revival no longer exists and courts require proof that the testator intended to revive the original will
117
What is the Acts of Independent Legal Significance doctrine?
When a person's act impacts the disposition of a will, it is presumed that the action was not done for testamentary reasons
118
A presumption of undue influence arises when the principal beneficiary under a will 1) is in a confidential relationship to the testator, 2) participated in executing the will, and 3) the gift to the beneficiary is unnatural.
o
119
What happens if a church was a beneficiary, but the church no longer exists at the time of the testator's death?
the anti-lapse statute will not apply. The gift will lapse
120
What happens if a will was made outside of CA?
the will is likely valid. It is valid if:
- it is in conformity with CA law
- it is in conformity with the law of the place where it was made
- it is in conformity with the law of the state where the testator was domiciled at the time of death
121
if a will was executed in duplicate, destruction of one duplicate by the testator with the intent to revoke the instrument will revoke all duplicates of the will.
o
122
California does not require that a holographic will be dated. In the event that another will is inconsistent, there is a rebuttable presumption that a non-dated holographic will predates the other will signed by the testator.
o
123
At death, the surviving spouse does not have any interest in the decedent’s SP unless the decedent dies intestate.
o
124
What is it called when there is writing on the face of the will? (like crossing off someone's name)
interlineation
interlineations that change the amount made after the execution of an attested will are not given effect unless they meet the requirements of a holographic codicil. Here, T’s crossing out of “$10,000” and subsequent writing of “$12,000” above it can be construed as an interlineation. However, due to the fact it is a change to the amount of the bequest, it will not be given any effect unless it meets the requirements of a valid holographic codicil.
125
When does the CA omitted child statute NOT apply?
- it appears that the omission of the child was intentional;
- the settlor had other children at the time the testamentary device was executed and left substantially all of his estate to the other parent of the omitted child; OR
- the settlor provided for the child outside of the testamentary device and intended this to be in lieu of a provision in the testamentary device.
126
How much is the omitted child entitled to?
a share equal to that which the child would have received if the decedent had died intestate. Satisfying the omitted child’s share may cause other gifts in the will to abate
