Wills

Question 1

Surviving Spouse - intestacy requirements and share

Answer 1

• requirements to take under intestacy: legally married at time of death + survive decedent by 120 hrs
• community property share - entitled to all of the CP/QCP
• separate property share - depends on number of surviving lineal descendants, parents, or issue of parents
• no relatives –> 100%
• 1 relative –> 1/2 share
• 2+ surviving relatives –> 1/3 share

Question 2

Issue - intestacy requirements and share

Answer 2

• issue = lineal descendants of testator
• per capita - if all issue are of equal degree of kinship, the propery passes equally to each person
• per capita with representation - if issue are not of equal kinship –> property is divided at the first generation in which at least one member survives the decedent and the shares that would go to the member that predeceased the decedent go to their issue

Question 3

per stirpes

Answer 3

• can be used if the will calls for it
• divide at the generation of the children of the decedent even if they are all dead and then trickles down to living relatives

Question 4

general requirements for a validly executed will

Answer 4

• capacity: 18+ years, not mentally ill or addicted to drugs
• testamentory intent: understand that they are executing a will and know and approve of its contents
• compliance with will formalities (attested or holographic)

Question 5

requirements for an attested will

Answer 5

• capacity + testamentory intent
• in writing
• signed by testator
• 2 witnesses that know it is a will
• interested witness = a witness who has financial interest in the will. rebuttable presumption that interested witness exerted undue influence over testator –> if not rebutted then the witness takes intestate share
• republication by codicil - a valid codicil cures any interested witness problems
  * substantial compliance - if clear and convincing evidence that testator intended the document to count as a will even tho didn’t meet legal requirements for a will –> treated as a valid will

Question 6

Holographic will

Answer 6

• capacity + testamentory intent
• T handwrites material provisions (beneficiaries, items) - pre-printed will form okay
• T signs the instrument
• no witness requirement

Question 7

codicil (definition and effect)

Answer 7

• codicil = supplement to a will that alters, amends, or modifies the will
• must be executed with the same formalities as a will
• republishes the will as the of the date of the codicil
• cures invalid will

Question 8

will substitute - deed

Answer 8

• deed of property can be a will substitute
• must meed the requirements of a valid attested will (writing, signed, witnesses) or holographic will (material provisions in handwriting and signed by the testator)

Question 9

choice of law

Answer 9

If a will is validly executed in another state, the will is treated as valid in California. If a will is not validly executed in another state, but the decedent is domiciled in California and dies in California, his/her will is treated as valid if it meets the California requirements.

Question 10

What are the 3 ways a will can be revoked?

Answer 10

1. subsequent writing (cannot be oral, can revoke all or part, express or implied by inconsistencies)
2. physical destruction (with intent to revoke) - counts if non-T does it in T presence, destruction of 1 duplicate original counts
3. operation of law (divorce or dissolution automatically revokes provisions in favor of former spouse unless shown that T intended for the will provisions to survive divorce)

Question 11

Revocation of a codicil

Answer 11

If T revokes codicil, the original will terms will be revived and followed.

Question 12

Dependent Relative Revocation (DRR)

Answer 12

The doctrine of Dependent Relative Revocation (DRR) will allow a court to revive a revoked will when the testator revoked the will by subsequent instrument or physical act under a mistaken belief of law or fact. It must be shown that the testator would not have revoked the original will but for the mistaken belief.

Question 13

integration

Answer 13

the will consists of all pages that are present at the time of execution and that are intended to form part of the will, which can be shown by physical connection of the pages (stapled or paper clipped together) or by the ongoing nature of the language of the will (pages are not attached, but page numbers indicate that the pages follow each other)

Question 14

incorporation by reference

Answer 14

A writing not executed with testamentary formalities may be incorporated by reference if it
1. existed at the time the will was executed (not required if only personal property),
2. is intended to be incorporated, and
3. is described in the will or codicil with sufficient certainty

Question 15

acts of independent significance

Answer 15

Awillcanreferenceoutsideeventsoractsthathelpdeterminewheretodistributethe estate (e.g. the person who is my brother’s spouse)

Question 16

What are the different classifications for gifts?

Answer 16

• specific gift: item that can be distinguished with reasonable accuracy from other property that is part of the estate (e.g. specific item of furniture)
• general gift: gifts that are meant to be satisfied from the general assets of the estate (e.g. money)
• demonstrative gift: money from a specific source, but if funds not sufficient, then out of the general funds
• residuary: gift of estate remaining when all claims against estate and specific, general, and demonstrative gifts have been satisfied

Question 17

Abatement

Answer 17

If the assets of the estate are insufficient to pay all debts of the testator and gifts, a court will “abate” or reduce the gifts to pay the debts. The court will abate the gifts, pro rata, in the following default order:
1) Intestate property (property that has not been addressed in the will)
2) Residuary bequests
3) General bequests
4) Specific bequests

Question 18

Ademption by Extinction

Answer 18

• traditional: specific gift missing/destroyed/substantially changed –> get nothing
• modern CA law: courts will examine the testator’s intent at the time he disposed of the specific gift. If there is evidence that the testator that the intended for the beneficiary to receive the gift the court may treat the specific gift as a general or demonstrative gift or trace the specific gift to its new form

Question 19

Lapse and Anti-Lapse

Answer 19

• CL: beneficiary dies before T –> gift lapses
• modern anti-lapse: if beneficiary blood-related to T, the beneficiary’s surviving issue (child, grandchild) will take in the beneficiary’s place
• limitation - class gift: if beneficiaries a class –> only members of class who are alive at the time of execution will receive the benefit of the gift

Question 20

Ambiguities in the will

Answer 20

A court will only look to the will itself to interpret the terms; no extrinsic evidence is admissible. However, extrinsic evidence is admissible if a patent or latent ambiguity can be shown.

Question 21

Can the testator transfer her half of the CP/QCP to someone other than her spouse by will?

Answer 21

Yes.

Question 22

omitted spouse

Answer 22

• marriage after execution of will + spouse not mentioned in the will
• omitted spouse entiteld to intestate share unless:
• The omission was intentional;
• The spouse was given property outside of 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; or
• The spouse was a care custodian who married a dependent adult testator while or within 90
  days after providing services to that dependent adult, and the decedent died less than six months after the marriage commenced (unless there is clear and convincing evidence that the marriage was not the product of fraud or undue influence).

Question 23

omitted children

Answer 23

An omitted child is:
* A child born or adopted after the will is created, or the testator mistakenly believed the child was dead, or did not know the child existed; and
* The child is unintentionally omitted from the will.
* Limitations: A share will not be forced if the child has been provided for outside of the will, or if the testator had other children at the time the will was executed and left substantially all of his estate to the omitted child’s parent.

Question 24

What are the reasons you can contest a will?

Answer 24

• insane delusion
• undue influence
• fraud

Question 25

insane delusion

Answer 25

• belief for which there is no factual reasonable belief and T believed despite all evidence to the contrary
• but for cause of distribution of property

Question 26

Undue influence

Answer 26

• a) mental or physical coercion, b) with intent to influence T
• traditional: susceptibility, motive, opportunity, causation
• CA approach: T’s vulnerability and whether influencer knew or should have known about vulnerability, influencer’s apparent authority, influencer’s actions, equity of the result
• Confidential relationship: presumption of undue influence when 1) principal beneficiary has confidential relationship, 2) principal beneficiary participated in executing the will, 3) gift to beneficiary is unnatural –> clear and convincing evidence otherwise will only receive intestate share
• CA statutory presumptins: any provision is invalid that makes a gift to 1) person who drafted the will, person who transcribed the will and fiduciary relationship)

Question 27

Fraud

Answer 27

• fraud in the inducement
• fraud in the execution: T doesn’t know he is creating a will or is not told of contents