Wills

Question 1

Specific Devise or Legacy

Answer 1

Gift of a particular item of property distinct from all other objects in the T’s estate (i.e. my three carat diamond ring)

Question 2

General Legacy

Answer 2

Gift of general economic benefit (dollar amount) payable out of the general assets of the estate without requiring any particular source of payment

i.e. Bequeath $5000 to A.
OR
items (i.e. 100 shares of XYZ stock) if the testator never owned those items and intended for the executor to purchase them for the beneficiary

Question 3

Demonstrative Legacy

Answer 3

Gift of general amount that is to be paid from a particular source or fund (devise 5K to A to be paid from the proceeds of sale of XYZ stock)
Specific and general hybrid

Question 4

Residuary Estate

Answer 4

Gift of the residue consists of the balance of the T’s property after paying

1. Debts, expenses, and taxes
2. Specific, general, and demonstrative gifts

Question 5

Ademption

Answer 5

Definition: the failure of a gift because the property is no longer in the T’s estate at the time of T’s death

Applies to: specific devises and bequests
Doesn’t apply to general or demonstrative gifts. Rule: they will be satisfied by selling or directly giving other assets

Rule: if the specific bequest is adeemed, then the beneficiary takes nothing.

Partial ademption: A gift may be partially adeemed and the beneficiary takes the remaining portion.

Rule: the court will try to avoid ademption of securities as a general legacy unless the testator intended it to be specific using language such as “my stock”.

CA: takes into consideration the testator’s intent when determining if a gift has been adeemed (opposite of most states)

Question 6

California Ademption

Answer 6

Rule: CA will look to the intent of the testator in the bequest in order to determine if the property has adeemed.

If the property is destroyed simultaneously with the death of T, no intention for gift to fail.

Additionally, a mere change in the character of the property shows lack of intent for failure of gift, if the proceeds of a sale are easily traceable.

If they cannot be traced, or are disposed of, ademption occurs

RS: CA statutes specifically protect certain bequests from ademption.

1. Balance of the purchase price owing from a purchaser at the time of T’s death by reason of sale of property (with security interest)
2. Eminent domain award for taking of property unpaid at death
3. Proceeds unpaid at death from insurance on the property
4. Property owned at T’s death as a result of foreclosure, or obtained in lieu of foreclosure, of the security interest
5. Securities in another entity that were the result of action on part of entity whose stock bequeathed
6. Remaining proceeds of the sale of the T’s property paid to a guardian of an incompetent testator

Question 7

Increases to Property After Execution of Will

Answer 7

1. Increases occurring before the T’s death such as income goes to the general devisee, while improvements on RP go to the specific devisee
2. After death–passes to the specific beneficiary because he owns at time of T’s death
3. Stock splits/dividends
   At common law, a specific bequest of stock includes any additional shares produced by stock split, but does not include shares produced by stock dividend (but all states include this now)

Question 8

Abatement

Answer 8

Abatement is the process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises. The T may set out an abatement order in the will. If there is none, then the property passes in the following order:

1. Property passing intestacy
2. Residuary
3. General gifts to persons other than relatives
4. General gifts to relatives
5. Specific gifts to non-relatives
6. Specific gifts to relatives

Within each category, gifts abate pro-rata. Demonstrative gifts treated as specific–unless fund is insufficient, than general

CA: exoneration–liens on specifically devised property are not exonerated unless will directs.

Question 9

Will Contests

Answer 9

A will contests challenges the validity of a document offered for probate.
Grounds:
1. Defective execution 
2. Revocation 
3. Lack of capacity 
4. Lack of intent 
5. Undue influence 
6. Fraud
7. Mistake

Question 10

Lack of Capacity

Answer 10

A testator must be of sufficient age and lack the mental capacity to form testamentary intent. The will is invalid if the T lacks capacity.

Must be 18: if there is only will executed before T is 18, the entire will is void/invalid

Mental Capacity: The T must have the ability to understand:

1. The nature of his act
2. The nature and extent of his property
3. The persons who are the natural objects of his bounty

Must exist at time will is executed

Question 11

Insane Delusion

Answer 11

Form of incapacity
Def: a belief in the facts that do not exist and that no rational person would believe exists.

Rule: the will may be set aside only if the delusion caused the disposition

Question 12

Undue Influence

Answer 12

A will, revocation of a will, or part of a will is ineffective to the extent the execution or revocation was procured by undue influence.

Def: influence is undue only when the T’s free will is destroyed and the parts of the will reflect the procurer of undue influence.

Three elements:

1. The person must have influenced the T
2. The influence was such that it overpowered the free will of the T
3. The effect of the influence resulted in a testamentary disposition that would not have occurred but for the influence.

Circumstantial Evidence:

1. Opportunity to exert influence
2. Susceptibilty of T
3. Active influence
4. Unnatural disposition
5. At variance with intentions

Question 13

Common Law Presumption of UDI

Answer 13

A presumption of undue influence shifts the burden of proof from the challenger to the beneficiary when

1. A confidential relationship existed between the T and the B (no spouses or DPs)
2. B actively participated in some way in procuring or drafting will
3. The B unduly benefits from the instrument (unnatural)

Question 14

Statutory Presumption of UDI or Fraud

Answer 14

CA presumes that a donative transfer to certain people are the product of fraud or UI. These people include

1. drafter of instrument
2. fiduciary relationship with transferor who transcribed the instrument or caused it to be transcribed
3. care custodian during substantial health care or within 90 days before or afterwards

Conclusive presumption: drafter, his relatives, and certain associates