Wills

Question 1

Validity of a Will under California Law

Answer 1

A will is valid in California if it is valid under (a) California law; (b) the law of the State where the will was executed; OR (c) the law of the State where the testator was domiciled at the time of execution or death.

Question 2

Attested Will Execution Requirements

Answer 2

A valid will requires (1) a writing concerning the distribution of property upon death (2) signed by the testator or someone at his direction and in his presence (an appointed conservator may also sign); (3) the signing must be witnessed by two disinterested individuals (both must be present at the same time); (4) the witnesses must sign the writing during the testator’s lifetime; AND (5) the witnesses must understand that they signed the testator’s will.

After January 1, 2009, a will which complies with the writing and testator’s signature requirements (but fails to comply with the witnessing requirements) MAY still be admitted to probate if the proponent of the will is able to produce clear and convincing evidence that the testator intended the document to be her will at the time it was signed.

Question 3

Holographic Will or Codicil

Answer 3

A holographic will is handwritten and signed by the testator, but not witnessed. In California, a holographic will or codicil is valid if signed by the testator AND all material terms of the will are in the testator’s handwriting. Material terms include the name of the beneficiaries and the gifts they will receive. There is no requirement that a holographic will devise the testator’s entire estate; instead any portion not devised will pass by intestacy.

Question 4

Holographic Wills and Dates

Answer 4

The lack of a date DOES NOT affect the validity of a holographic will, except when: (a) there is an issue with testamentary capacity; OR (b) there is a possibility that two or more wills should be probated which are inconsistent – in such instance the holographic will is invalid to the extent of the inconsistency (unless the time of its execution is established to be after the date of execution of the other will).

Question 5

Modification of a Will by Codicil

Answer 5

To revoke a will through a codicil, there must be intent to do so. A codicil is an instrument made after a will is executed that modifies, amends, or revokes a will. A codicil MUST satisfy the same formalities as a will. Execution of a codicil republishes the will, meaning courts will consider the original will to have been executed on the same date as the codicil. A validly executed codicil will also cure any interested witness problems with the original will.

Question 6

Ambiguities in a Will

Answer 6

A court will consider extrinsic evidence to clarify any ambiguities in a will.

Question 7

Integration

Answer 7

Documents will be integrated into a will if the testator intended them to be part of the will AND they were physically present at the time of the will’s execution.

Question 8

Incorporation by Reference

Answer 8

A document or writing may be incorporated into a will by reference if it (1) was in existence at the time the will was executed; (2) is sufficiently described in the will; AND (3) the testator intended to incorporate it.

Question 9

Testator Gift of Community & Separate Property

Answer 9

In any will, a testator may only gift his share of the community property. In addition, a testator who is married may devise any separate property he or she owns (i.e. property acquired prior to a marriage or by inheritance).

Question 10

Revocation by Physical Act

Answer 10

A will is revoked by physical act if: (1) the testator intended to revoke the will; AND (2) the will is burned, torn, destroyed, or cancelled by the testator (or by someone at the testator’s direction while in the testator’s presence). A will executed in duplicate is also revoked if one of the duplicates is revoked by physical act.

Question 11

Revocation by Subsequent Will or Codicil

Answer 11

A testator can revoke a will by executing a subsequent valid
will or codicil.

Question 12

Revocation by Divorce

Answer 12

In California, any gifts to a spouse are revoked upon
divorce.

Question 13

Partial Revocation of a Will

Answer 13

A testator may make a partial revocation of a will he intends to revoke by lining through or crossing out a portion of it. However, he CANNOT increase a gift in a will through a partial cancellation; this must be done by adhering to will formalities. Partial revocation of a holographic will may be done through interlineation (writing between the lines of a will).

Question 14

Dependent Relevant Revocation

Answer 14

The dependent relevant revocation doctrine cancels a revocation that was made under a mistaken belief of law or fact by the testator. The doctrine applies when the testator would not have revoked his original will but for the mistaken belief that another will he prepared would be valid.

Question 15

Revival of Revoked Wills & Republication by Codicil

Answer 15

Revoked wills may be revived under certain circumstances. A will revoked by physical act will be revived if a testator shows intent for its revival. A will revoked by a subsequent instrument can be revived if the testator republishes the will by a subsequent will or codicil that complies with the will execution formalities.

Question 16

Testamentary Capacity

Answer 16

To have sufficient capacity to execute a will, a testator must (1) be at least 18 years old; (2) understand the nature and extent of her property; AND (3) understand the natural objects of her bounty (i.e. her relatives and friends). Appointment of a conservator alone, does not prove a lack of capacity.

Question 17

Interested Witness

Answer 17

A will is only valid if it is signed by the testator in the presence of two disinterested witnesses. Any gifts to an interested witness (a beneficiary under the will) are presumed invalid. If an interested witness cannot overcome this presumption, he will only take his intestate share of the estate.

Question 18

Insane Delusion

Answer 18

A will is invalid if it is the result of an insane delusion that caused an unnatural result. An insane delusion occurs when the testator has a false idea that is not supported by facts and the testator refuses to accept evidence contrary to his idea.

Question 19

Fraud

Answer 19

A will is fraudulent if a person (1) intentionally made a misrepresentation; (2) of material fact; (3) in order to induce the testator to either sign the will or change the contents of the will; AND (4) the testator did so.

Question 20

Undue Influence Generally

Answer 20

Undue influence occurs when a person exerts influence that overcomes a testator’s free will and judgment.

Question 21

Prima Facia Undue Influence

Answer 21

A prima facie case of undue influence is established if (1) the testator had a weakness (physical, mental, or financial) that made him susceptible to influence; (2) the wrongdoer had access to the testator and an opportunity to exert influence; (3) the wrongdoer actively participated in drafting the will; AND (4) there is an unnatural (unexpected) result.

Question 22

Common Law Undue Influence Presumption

Answer 22

A common law presumption of undue influence is established if (1) a confidential relationship existed between the testator and the wrongdoer; (2) the wrongdoer actively participated in the drafting the will; AND (3) there is an unnatural result.

Question 23

CA Statutory Presumption

Answer 23

In California, a statutory presumption of undue influence is established if the testator makes a donative transfer to (1) the person who drafted the will; (2) a care custodian of a testator who is a “dependent adult”; (3) a person in a fiduciary relationship with the testator; (4) a person who is a spouse, domestic partner, employee, or related by blood to a person in the one of the previous three circumstances; OR (5) a partner, shareholder, or employee of the law firm in which a person who drafted the will or one in a fiduciary relationship with the testator has an ownership interest. Under a prima facie case and common law presumption, the affected provision will be invalid. However, under the statutory presumption, the gift to the wrongdoer lapses.

Question 24

Individuals Who May Make a Will

Answer 24

Any individual 18 years or older who is of sound mind may make a will or codicil.

A conservator MAY make a will for a conservatee (a person whom the court has determined because of physical/mental limitations requires a conservator to handle their financial affairs), BUT ONLY IF so authorized by a court order. A conservatee who is mentally competent still has the right to make a will, revoke or amend a will made by a conservator, or make a new and inconsistent will.

Question 25

Terms of a Will Given Effect When Probated

Answer 25

The terms of a will are given effect at the time the will is probated OR after the testator’s death.

Question 26

Lapse of Gifts & Anti-Lapse Statute

Answer 26

If a beneficiary does not exist at the time of a testator’s death, the gift lapses and returns to the residual estate, which is distributed under intestate succession rules. However, CA has an anti-lapse statute, under which a gift will not lapse, but instead pass to the deceased beneficiary’s issue. The anti-lapse statute applies only if the deceased beneficiary: (1) was related by blood to the testator; (2) was survived by issue; AND (3) there is no contrary intent. The anti-lapse statute also applies to a member of a class gift.

Question 27

Per Capita by Representation Distribution

Answer 27

Under Per Capita by Representation distribution (also known as modern per stirpes), the estate is divided into as many equal shares as there are (1) surviving descendants in the generation nearest to the decedent, and (2) deceased descendants in the same generation who left surviving descendants (if any). Each surviving descendant in the nearest generation is allocated one share. The remaining shares of each deceased member of that generation (who leaves issue then living) are divided in the same manner among the then living issue.

Question 28

Per Stirpes Distribution

Answer 28

In a per stirpes distribution, the estate is distributed equally among beneficiaries. If a beneficiary predeceases the testator, that beneficiary’s share passes directly to any surviving descendants. If there are more than one surviving descendants, the share divided equally among them. If the deceased beneficiary does not have any surviving descendants, the share passes to the other beneficiaries.

Question 29

General Gifts

Answer 29

A general gift is nonspecific and is satisfied from any of the funds remaining in a testator’s estate.

Question 30

Specific Gifts

Answer 30

A specific gift is one that is specifically identified, such as real property or personal property.

Question 31

Demonstrative Gifts

Answer 31

A demonstrative gift is a hybrid of a specific and general gift where the testator makes a general gift (a specific amount of money), but also identifies the specific source the gift should come from.

Question 32

Residual Gifts

Answer 32

A residual gift is a gift of any property remaining after the distribution of the estate to identified beneficiaries.

Question 32

Ademption

Answer 32

A specific gift is adeemed by extinction if the testator DOES NOT own it at the time of death. This can occur when the testator makes a specific gift, but the property is later destroyed or sold before the testator’s death. Ademption DOES NOT apply to general or demonstrative gifts. In California, a specific gift is adeemed ONLY IF the testator intended the gift to fail. Additionally, California recognizes four exceptions to the ademption rule: (1) when the stock is changed to another form of stock (i.e. by a merger); (2) when the executor of the estate sells the property; (3) when the Testator receives condemnation proceedings and there’s no issue of traceability; and (4) if the specific gift was destroyed, the beneficiary is entitled to any unpaid insurance recovery or other recovery for injury to the property.

Question 33

Abatement

Answer 33

Abatement, the process of reducing gifts, occurs when assets are insufficient to cover debts, expenses, and gifts. Gifts abate depending on class and in the following order: residuary, general, and then specific. Gifts within each class are abated equally.

Question 34

Adopted Children

Answer 34

Adopted children inherit from their parents as if they were natural born children.

Question 35

Joint Property: Right of Survivorship

Answer 35

Two or more persons may hold real or personal property as “joint-tenants”. Such property passes outside of a will and intestacy, as the surviving joint-tenants have a right of survivorship. A right of survivorship means that when one joint tenant dies his interest in the property is automatically transferred to the other joint tenant(s).

Question 36

Intestate Distribution Community Property

Answer 36

A surviving spouse is entitled to one-half of the decedent’s community property AND quasi- community property. The remaining one-half of the community and quasi-community property is already owned by the surviving spouse.

Question 37

Intestate Distribution Separate Property

Answer 37

As to separate property, the intestate share of the surviving spouse is as follows: (1) the entire intestate share – if the decedent did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister; (2) one-half – if decedent leaves (a) only 1 child or the issue of 1 deceased child or (b) no issue, but leaves a parent/parents or their issue; OR (3) one-third – if decedent leaves (a) 2 or more children, (b) 1 child and the issue of 1 or more deceased children, or (c) leaves issue of 2 or more deceased children. Any share that DOES NOT pass to the surviving spouse, passes to decedent’s issue either (a) equally – if they are all in the same degree of kinship, or (b) by Per Capita by Representation distribution. If there are no surviving issue, then the estate passes to the nearest generation equally in the following order: parents, parents’ issue, grandparents, and grandparents’ issue.

Question 38

Omitted Spouse

Answer 38

A surviving spouse is entitled to one-half of the decedent’s community property AND quasi-community property. In addition, a surviving spouse not mentioned in a will that was executed before the marriage began, is entitled to a share of the separate property equal to what the spouse would have received under intestacy (but that share cannot be more than one-half of the separate property in the estate). However, a surviving spouse DOES NOT receive the intestate share if: (a) the spouse was intentionally omitted – apparent from the testamentary instrument; (b) the spouse was given property outside of the will in lieu of a disposition in the will; OR (c) the omission was consistent with a valid prenuptial agreement.

Question 39

Omitted Child

Answer 39

A child that is NOT mentioned in a will that was executed before the child’s birth or adoption, is presumed to have been omitted accidentally, and is entitled to an intestate share of the testator’s estate, UNLESS: (a) the child was intentionally omitted; (b) the child is supported by transfers outside of the will; OR (c) the testator had more than one child and left all or substantially all of his estate with the parent of the omitted child. A child that is NOT mentioned in a will that was executed after the child’s birth is entitled to a share of the decedents estate ONLY IF the child was omitted because the decedent was unaware of the child’s existence or believed the child was dead.