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Flashcards in Wills Deck (55):

Intestacy (CP division)

surviving spouse is entitled to 1/2 of CP, so SS will get all of CP and QCP


Intestacy (SP division)

All SP passes to SS if decedent is not survived by any relatives. 1/2 of SP pass to SS if decedent is survived by one lineal descendant, parent or issue of parent. 1/3 goes to SS if decedent is survived by more than one lineal descendent.


Presumption of paternity

If child born less than 300 days after termination by death/divorce


Per capita

if equal degree of kinship, split equally


Per capita with representation

divides property equally among the first generation with at least on surviving member, shares of deceased members pass to the then-living issue of the deceased member


Per stirpes

issue take in equal portion the share that their deceased ancestor would have taken if living


Per capita at each generation

heirs of the same generation will each receive the same amount; estate is divided into equal shares at generation closest to deceased with surviving heirs


Will formalities

(1) writing; (2) signed by testator; (3) T must be at least 18 and of sound mind; (4) present testamentary intent; (5) attested to by and signed in the joint presence of two witnesses, who understand the significance of the testator's act


Conscious presence test

witnesses need not read will; but must be aware that the instrument is a will; T and witnesses must be aware of each other's presence and what each is doing, but not required to watch each other sign

If T does not sign in presence of witnesses, he must expressly or impliedly acknowledge his signature to them before they sign


Interested witness

unless there are two other disinterest witnesses, a rebuttable presumption of undue influence arises; if presumption not rebutted, interested witness can still take under intestacy

The will itself is still valid


Testamentary intent

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


Substantial compliance

a will is treated as though it were in compliance with the law if proponent of will establishes by clear and convincing evidence that at the time T signed the will, T intended the will to constitute T's will


Holographic will

material provisions are handwritten by T and instrument is signed by T; need not be witnessed or dated; must be clear that the document was intended to be a will



alter, amends or modifies will; must be executed with same formalities as a will; a codicil may validate an invalid will if codicil refers to it with sufficient certainty to identify and incorporate it


Revocation (subsequent instrument)

a later will or codicil that partially or completely revokes a prior will, can be express or implied by terms of subsequent instrument; oral revocation not valid; the later document controls and revokes prior inconsistencies


Revocation (physical act)

burning, tearing, canceling, destroying a material portion of will, coupled with a simultaneous intent to revoke; some defacement of language required; crossing-out or writing "null and void" okay


Revocation by third party (physical destruction)

third party can revoke on behalf of T if at T's direction and in T's presence


Lost will

If a will cannot be found at testator's death, rebuttable presumption of revocation by physical act; proponent of will must prove its existence by clear and convincing evidence


Revocation (operation of law)

divorce (not separation) or dissolution revokes all will provisions in favor of the former spouse unless it can be shown that T intended for will to survive



T can cancel or reduce a give by lining out the test, but can't increase gift by adding new text without a codicil (probably need a signature)


Modification of holographic will

can be altered without a new signature if it remained in T's possession the entire time


Revocation of codil

revives terms of the original will


Revival (testator intent)

revocation of a will/codicil that revokes another will revives the original will if there is proof that T intended to revive the original will (extrinsic evidence ok if revocation by physical act)


Dependent relative revocation

Court will revive a revoked will if T was under mistaken belief of law/fact and would not have revoked but for such belief.


Specific gift

can be distinguished with reasonable accuracy from other property that is part of T's estate (shares of stock of named corp is specific)


General gift

personal property that T intends to be satisfied from general assets of estate


Demonstrative gif

a gift be paid from a particular source, but if that source is insufficient, can be paid from general assets



what remains when all claims against estate have been satisfied



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 or ongoing nature of the language of the will (numbering of pages etc.)


Incorporation by reference

a will may incorporate by reference another writing not executed with testamentary formalities if it existed at time the will executed (waived in CA if document only disposes T's personal property); is intended to be incorporated; described in will with sufficient certainty


acts of independent significance

will can provide for designation of a beneficiary or amount of disposition by reference to some unattested act or even occurring before or after execution of will or T's death, if act or event has some significance apart from will



if beneficiary dies before T, the gift fails and goes to residue and passes through intestacy


Anti-lapse statute

if gift was made to a blood relation of T (or T's spouse), and the relation (or spouse) predeceases T but leaves issue, the issue will take


Class gift rule

only surviving members of class will take, but if anti-lapse applies to issue of predeceased class member, the issue will take


Abatement order

Intestate property, residuary bequest, general bequests to non-relatives, then relatives; specific and demonstrative bequests to non-relative and then relatives


Ademption by extinction

if the subject matter of specific bequest is gone, then beneficiary takes nothing or whatever is left of specifically devised property

CA: courts will examine T's intent at time he disposed of the subject matter of bequest


Exoneration of liens

a specific devisee of encumbered property is not entitled to have debt paid off by residual estate unless testator's intent to do so is clear in the will


Ademption by satisfaction

a general, specific or demonstrative devise may be satisfied in whole or in part by an inter vivos transfer to devisee after the execution of the will, if it was T's intent to satisfy the devise by transfer



under plain meaning rule, a court will interpret a will using only the four corners of the document; extrinsic evidence admissible if there is a patent or latent ambiguity, equivocation or personal usage


Omitted spouse

if T married after execution of will, but does not provide for the spouse, the omitted spouse entitled to intestate share (1/2 of CP; no more than 1/2 of SP) unless (1) omission was intentional; (2) spouse was given property outside of will in lieu of disposition in will; (3) spouse was party to valid voluntary agreement waiving right to share in estate


Advancement to children

if decedent declared (or heir acknowledged) in contemporaneous writing, that indicates the gift was an advancement; need to be added back in to calculate intestate shares


Omitted children

an omitted child (born after execution of will) receives a share equal to what the child would have received if decedent died intestate unless (1) omission was intentional; (2) T had other children at time will was executed and left substantially all of his estate to the other parent of the omitted child; (3) T provided for child outside will in lieu of will


Bars to succession

Homicide; anti-lapse does not apply to killer's issue; elder abuse


Lack of mental capacity

At time of execution, T lacked capacity to (1) understand nature of act; (2) understand and recollect the nature and character of his property; (3) understand/remember his relationship with people affected by the will


Insane delusion

A belief for which there is no factual or reasonable basis, but to which T adheres despite all reason and evidence to the contrary; requires but-for causation to invalidate (T would not have disposed property in same manner but for insane delusion)


Undue influence

mental/physical coercion exerted by third party on T with intent to influence T such that he loses control of his own judgment, causing an unnatural result


Undue influence (traditional approach)

(1) Susceptibility: testator was susceptible to being influenced
(2) Motive: the influencer had reason to benefit;
(3) Opportunity: the influencer had the opportunity to influence; and
(4) Causation: the influence caused an unnatural result


Undue influence (presumption)

when beneficiary stands in confidential relationship to T, participated in executing the will, and gift to beneficiary was unnatural


Undue influence (statutory presumption)

drafter or fiduciary who transcribes will; care custodian; or person related to, living with or employed by those people

can be rebutted by clear and convincing evidence; does not apply to people are who related to or living with testator



must be present when will was executed; misrepresentation must be made by a beneficiary with both the intent to deceive T and purpose of influencing the testamentary disposition


Fraud in inducement

a misrepresentation that causes the testator to make a different will that he otherwise would have made. It must be shown that the testator would not have made the gift if he had known the truth.


Fraud in the execution

a misrepresentation as to the trust itself or its contents.


Providing for omitted spouse and heirs

Satisfied first from decedent's estate not passing by will/trust; then shares of all beneficiaries taking under will abate pro rata


Witnesses to a will

do not need to sign at same time or witness each other sign, but must sign during testator's lifetime


Choice of law

A will executed in conformity with California law, with the law of the place where it was executed, or with the law of the state where the testator was domiciled at the time of execution or death, is valid in the State of California.