Wills

Question 1

Basic Outline

Answer 1

1. Intestacy
2. Execution of Wills
3. Revocation
4. Construction
5. Power to transfer
6. Will contests

Question 2

Surviving Spouse

Answer 2

The surviving spouse must be legally married to the decedent at the time of death and must also survive the decedent by 120 hours to take by intestacy

Question 3

Community Property

Answer 3

At death, the surviving spouse is entitled to 1/2 of the Community Property (CP). The surviving spouse of an intestate decedent is also entitled to the decedent’s 1/2 CP and quasi-CP. Therefore, the surviving spouse will take 100% of the CP

Question 4

Separate Property

Answer 4

The surviving spouse’s SP share will depend upon the number of surviving lineal descendants, parents, or issue of parents.

• If there are no surviving lineal descendants, parents, or issue of parents of the
  decedent, the surviving spouse gets 100% of the decedent’s SP.
• If the decedent is survived by one lineal descendant or by a parent or issue of a parent, the surviving spouse gets 1/2 of the decedent’s SP. The other surviving
  relative gets the other 1/2 of the SP.
• If the decedent is survived by more than one lineal descendent, the surviving spouse
  gets 1/3 of the decedent’s SP and the other surviving relatives split the other 2/3 SP
  equally.

Question 5

Issue

Answer 5

Issue refers to lineal descendants of the testator, including children, grandchildren, and great-grandchildren. Adopted children take the same as non-adopted children.

Question 6

Per Capita

Answer 6

If the surviving issue are all of equal degree of kinship (all the same level of relation to the decedent), the property passes equally to each person

Question 7

Per Capita with Representation

Answer 7

– If the surviving issue are not of equal kinship, the
property is divided at the first generation in which at least one member survives the decedent. The shares that would go to the member that predeceased the decedent would go to his/her issue

Question 8

Execution of Will

Answer 8

1. capacity, fraud, and misrepresentation
2. testamentary intent
3. Will
4. Attested Will (writing & signature)
   —Interested witness
   —Republication by Codicil
   —Holographic Will (handwritten & signed)
5. Substantial Compliance
6. Codicil
7. Will substitute
8. Choice of Law

Question 9

Capacity

Answer 9

• 18+ years old
• understand the actions he’s taking
• understand the extent of his/her property
• understand who is receiving it

note: a conservator has a fiduciary duty to the testator when creating the will (duty of care, duty of loyalty)

Question 10

Testamentary Intent

Answer 10

The testator must understand he is executing a will and intend for it to have testamentary effect and must generally know and approve of its contents

Question 11

Attested Will

Answer 11

Writing & Signature:The will must be in writing and signed by the testator (T)

Witnesses: The will must be signed in the joint presence of and attested to by two witnesses
OR
T must expressly or impliedly acknowledge his signature to them before they sign

Each witness must be of sufficient mental capacity and maturity, and aware that the instrument is a will.

Question 12

Interest Witness

Answer 12

A witness who has a financial interest in the will is an “interested witness.” In CA, a will can be valid despite the presence of an interested witness

Rebuttable Presumption:, a rebuttable presumption is created that the interested witness/devisee exerted undue influence over the testator. If the presumption is not rebutted, the witness takes his/her intestate share of the
will (the witness will not take under the terms of the will)

Question 13

Republication by Codicil

Answer 13

A valid codicil executed after the original will cures any interested witness problems that existed during the execution of the original will. The interested witness will not be considered an “interested witness” and he/she will take under the terms of the new codicil.

Question 14

Substantial Compliance

Answer 14

If a will is not executed in compliance with the law, the will is treated as if it had been executed in compliance if the proponent of the will establishes by clear and convincing
evidence that, at the time the testator signed the will, the testator intended it to constitute the testator’s will.

Question 15

Holographic Wills

Answer 15

T must handwrite the “material provisions” of a holographic will. “Material provisions” include the beneficiaries of the will and the items that they will receive.

A preprinted will form can still be a valid holographic will, as long as the “material provisions” are
handwritten.

o T must sign the instrument.

o No witness requirement: Although it need not be witnessed or dated, it must be clear that T intended the document to be a will.

Question 16

Codicil

Answer 16

A codicil is a supplement to a will that alters, amends, or modifies the will, rather than replacing it. Generally, a codicil must be executed with the same formalities as a will (can be attested or holographic)

Republication date: a validly executed codicil republishes a will as of the date of the codicil

Cure invalid will: A valid codicil executed after the original will cures any problems that existed at the execution of the will, including an interested witness. The interested
witness will not be considered an “interested witness” anymore and he/she will take under the terms of the new codicil.

Question 17

Will Substitute -Deed

Answer 17

A deed of property can serve as a will substitute for transferring property upon the death of the landowner. If a grantor (owner of land) delivers a deed to a third party (agent) with instructions to give the deed to a person (grantee) upon the grantor’s death, the deed will
serve as a will substitute and the deed will be transferred to grantee upon grantor’s death

Question 18

Choice of Law

Answer 18

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 19

Revocation

Answer 19

• Subsequent instrument
• Physical Destruction
• Revocation by Operation of Law
• Revocation of Codicil
• Revival (Repubication, DRR)

Question 20

Revocation: Subsequent Instrument

Answer 20

A testator can revoke a will or codicil by executing a later will or codicil that partly or completely revokes the prior will or codicil. Oral revocations are not valid

• partial or complete revocation
• Express: state it
• Implied: inconsistent terms

Question 21

Revocation: Physical Destruction

Answer 21

A will or codicil may be partially or completely revoked by destroying a portion of the will or codicil with the intent to revoke it. The act of destruction must occur with the intent to revoke (simultaneous act and intent).

▪ Partial or whole defacement of the actual language of the will or codicil is required.

▪ A third party can revoke through physical destruction of the will or codicil on behalf of the testator if it is requested by testator and destroyed in testator’s presence.

▪ Destruction of a signed original or duplicate original presumptively destroys all copies

Question 22

Revocation of Codicil

Answer 22

A valid codicil alters, amends, or modifies the original will. If the testator revokes the codicil, the original will terms will be revived, and the original will terms will be followed

Question 23

Republication

Answer 23

Revocation of a later will or codicil that revokes the original will revives the original will if there is proof that the testator intended to revive the original will. If the later will or codicil is revoked by physical act, extrinsic evidence of testator’s intent to revive the original will is
admissible

Question 24

Dependent Relative Revocation (DRR)

Answer 24

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 25

Construction

Answer 25

Construction of a will requires a court to determine the terms of the will and how to distribute the estate

• Integration
• Incorporation by reference
• Abatement
• Ademption by extinction
• Lapse and Anti-Lapse
• Ambiguities of Will

Question 26

Integration

Answer 26

Under the doctrine of Integration, 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 27

Incorporation by Reference

Answer 27

A writing not executed with testamentary formalities may be incorporated by reference if it
existed at the time the will was executed, is intended to be incorporated, and is described in
the will or codicil with sufficient certainty.

▪ A writing not executed with testamentary formalities may be incorporated by reference
if it:

• Existed at the time the will was executed
• Is intended to be incorporated
• And is described in the will or codicil with sufficient certainty.

▪ In CA, the writing need not exist at the time the will was executed if it only disposes of
the T’s personal property (in other words, the testator can write a will referencing
another document and then create the document later).

▪ A holographic will or codicil can incorporate a handwritten or typed document.

▪ A validly executed codicil can incorporate an invalid will and make the terms of the will
valid

Question 28

Acts of Independent Significance

Answer 28

A will can reference outside events or acts that help determine where to distribute the estate

Question 29

Classification

Answer 29

a court will first classify each gift when determining the distribution of real property and personal property under a testator’s will

• Specific: item can be distinguished with reasonable accuracy from other property that is part of the testator’s estate
• General: Gifts that are meant to be satisfied from the general assets of the estate

-Demonstrative Gift: conditional

• Residuary: a gift of the estate remaining when all claims against the estate and all specific, general, and demonstrative gifts have been satisfied

Question 30

Abatement

Answer 30

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 31

Ademption by Extinction

Answer 31

Traditionally, if a specific gift is missing, destroyed, or there is a substantial change in the form of the gift the beneficiary takes nothing (does not apply to general or demonstrative
gifts).

▪ Under modern law and in California 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 32

Lapse and Anti-Lapse

Answer 32

Under common law, if a beneficiary dies before the testator, the gift to the beneficiary
lapses (fails)

Under modern anti-lapse statutes (applicable in CA), if the beneficiary was blood-related to the testator, the beneficiary’s surviving issue (child, grandchild, etc.) will take in the beneficiary’s place

Limitation – Class Gift: If the will beneficiaries are a class only the members of the class who
are alive at the time of the execution of the will receive the benefit of the will.

Question 33

Ambiguities in the Will

Answer 33

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 34

Community Property and Quasi-Community Property

Answer 34

At the death of one spouse or domestic partner, the surviving spouse or partner owns half of the community property and quasi-community property. The decedent can dispose of the other half by will

Question 35

Omitted Spouse

Answer 35

Omitted spouse – a marriage or domestic partnership is formed after the execution of testator’s will and spouse is not mentioned in the will.

o An omitted spouse is entitled to an 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)

The ommited spouse is entitled to decedent’s one-half of CP and quasi-CP, and share of decedent’s SP

Question 36

Omitted Children

Answer 36

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 37

Insane Delusion

Answer 37

An insane delusion is a belief for which there is no factual or reasonable belief, but the testator believes despite all reason and evidence to the contrary. If it is shown that the
testator has an insane delusion, it must be also shown that but for this delusion, testator would not have disposed of his property in the manner he did (i.e., the delusion must have caused the testator to make the disposition).

Question 38

Undue Influence - Traditional Approach

Answer 38

1. Susceptibility
2. Motive
3. Opportunity
4. Causation

Question 39

Undue Influence - California Approach

Answer 39

A contestant must use a four-factor test:
1. The victim’s vulnerability, and whether the influencer knew or should have known
about the victim’s vulnerability;
2. The influencer’s apparent authority;
3. The influencer’s actions or tactics; and
4. The equity of the result

Question 40

Undue influence - Confidential Relationship

Answer 40

A presumption of undue influence arises when:
1. The principal beneficiary of the will has a confidential relationship with the testator
(examples: attorney, physician, clergy member),
2. The principal beneficiary participated in executing the will, and
3. The gift to the beneficiary is unnatural.
▪ If a presumption arises, the beneficiary must show through clear and convincing
evidence that he did not exercise undue influence.
▪ If the beneficiary exerted undue influence, he will only receive what he would be
entitled to under an intestate approach (if the beneficiary were a friend of the testator
he would receive nothing because friends do not take under intestacy; a family member
would take an intestate share).
▪ California statutory presumptions – California holds invalid any provision making a gift
to:
* The person who drafted the will; or
* The person who transcribed the will or caused it to be transcribed and who was in a
fiduciary relationship with the testator at the time the will was transcribed

Question 41

Fraud in the Inducement

Answer 41

Fraud in the inducement

Question 42

Fraud in the Execution

Answer 42

The testator does not know he is creating a will or is not told of its contents