Wills

Question 1

Will Requirements?

Answer 1

1. Writing
2. Signed by T, or in her presence at her direction (acknowledgement of signature)
3. Signed by two witnesses
4. Witnesses know it’s T’s will
5. Witnesses (at same time) see T sign or see T ackknowledge signature.

Question 2

Holographic Will Requirements?

Answer 2

1. T’s signature
2. Material provisions in T’s hadnwriting
3. Invalid if no date and unclear which will controls

Question 3

Capacity/Intent Issues

Answer 3

• 18 years old
• Sound mind/competent
• Fraud in execution (forgery)
• Fraud in the inducement (misrepresentation)
• Fraud preventing execution or revocation
• Undue influence

Question 4

Common Law Undue Influence (SOUP)?

Answer 4

SOUP
* Excessive persuasion
* Opportunity to influence
* Unnatural disposition
* Procuring disposition by active beneficiary

Question 5

Cal Undue Influence (Every Powerful CAR Operates From Inside VIA An Ignition)?

Answer 5

Every Powerful CAR Operates From Inside VIA An Ignition
* Excessive
* Persuasuion
* Causing another to
* Act or
* Refrain
* Overcomes
* Free will resulting in
* Inequity

Circumstancial Evidence to Prove:
* Vulnerability
* Influencer’s Authority
* Actions of Influencer

Question 6

Presume Fraud/Undue Influence If Devise Is To:

Answer 6

• Drafter
• One in fiduciary relationship with T or transcriber
• Care custodian within 90 days
• Employees or cohabitant of any above

Exceptions for blood relative, less than $5,000, or attornery consulted

Question 7

Wills - Conflict of Laws?

Answer 7

Valid if complies with laws of state of:
* Execution
* Place of Death; OR
* Domicile

Question 8

Integration Requirements?

Answer 8

1. Present at time of will
2. T’s intent

Extrinsic evidence allowed

Question 9

Incorporation by Reference Requirements?

Answer 9

1. Existed at time of will
2. Will show’s T intent
3. Sufficiently described

Question 10

Acts of Independent Legal Significance?

Answer 10

Acts or events separate from effect in will.

Question 11

Codicil?

Answer 11

• Amendment to will
• Republishes will as of date of codicil
• Same formalities as will or holographic will

Question 12

Pour-Over Will Requirements?

Answer 12

1. Identifies trust in will
2. Terms set forth in document other than will
3. Trust executed before or at will execution

Question 13

Will Revocation?

Answer 13

1. Physical act (presumed destroyed if last will with T and now gone)
2. By subsequent will (express or implied)
3. By operation of law (omitted child, spouse, partner except if express ommission, transfer outside of will, spouse waived, or child’s other parent takes

Question 14

Dependent Relative Revocation?

Answer 14

1. T revokes first will
2. T mistakenly believes second will valid but is not
3. If T knew second will invalid, would not have revoked
4. First will probated anyways

Question 15

Will revival?

Answer 15

• If first will revoked
• Then second will revoked
• First will revived if T intended to revive
• Extrinsic evidence allowed

Question 16

Four Classification of Gifts?

Answer 16

1. Specific gift (identifiable property, stocks/dividends to beneficiary)
2. General gift
3. Demonstrative gift (general but from specific property/fund)
4. Residuary - what is left

Question 17

Ademption by Extinction?

Answer 17

• Gift no longer exists
• Look at T’s intent to see if beneficiary still takes or nothing

Question 18

Ademption by satisfaction?

Answer 18

Given to beneficiary during life

Question 19

Abatement?

Answer 19

Gifts reduced to pay all debts in following order:
1. Property not disposed of
2. Residuary
3. General - nonrelative
4. General - relative
5. Specific - nonrelative
6. Specific - relative

Question 20

Exoneration

Answer 20

If will requires property subject to encumberance to be paid off, other specific gift of property is not abated to pay off.

Question 21

Lapse/Anti-Lapse?

Answer 21

• Predeceased beneficiary gift lapses to residual
• If beneficiary kindred, anti-lapse, so goes to issue
• Simultaneous death? Apply lapse or anti-lapse

Question 22

Survivor’s Rights?

Answer 22

• Spouse elects to take under will or statutory share
• Spouse can set aside transfer of CP or QCP
• Omitted heirs take intestate share unless exceptions met

Question 23

Two Bars to inheritence?

Answer 23

1. No-contest clauses - only allowed if probable cause
2. Killers treated as predeceased

Question 24

Intestate Succession?

Answer 24

• Heir must survive 120 hours
• All CP and QCP to surviving spouse
• All SP to spouse if no child; otherwise 1/2 if one child or 1/3 if two or more
• If no spouse or partner, then to:
  1. Issue
  2. Parents
  3. Issue of Parents
  4. Grandparents
  5. Issue of Grandparents
  6. Issue of predeceased spouse
  7. Next of kin
  8. Parents of predeceased spouse
  9. Issue of parents of predeceased spouse
  10. Escheat to state

Question 25

Per Capita - Generation?

Answer 25

* First generation with living * Each living gets one share * Share of all deceased split equally between next generation with living Example: Three children, A, B, and C. Only B lives. B take 1/3. Remaining 2/3 evenly split among A and C children or next living generation.

Question 26

Per Capita - Representation?

Answer 26

* First generation with living * Each living gets one share * Share of deceased goes to issue equally * If deceased has no issue, goes back to all at that level.

Question 27

Strict Per Stirpes?

Answer 27

* First general with living or deceased with issue * Each living or deceased issue gets one share

Question 28

Adopted and Step-/Foster Children?

Answer 28

* Adopted treated as natural * Step/Foster only if started during child's minority, continued through life, and legal barrier to adoption.

Question 29

Contrac to make a will, not make a will, or revoke a will established by:

Answer 29

1. Material provisiosn of contract in will 2. Reference in will to contract and extrinsic evidence 3. Writing signed by decedant 4. Clear and convincing evidence Joint or mutual wills not presumption of contract. Breach of contract for wills is constructive trust.