Wills

Question 1

A decedent dies without a will, survived by his spouse, his brother, his niece (the sole issue of the decedent’s deceased sister),and his mother. To whom will the decedents separate property be distributed?

A. His spouse.
B. His spouse and his mother.
C. His spouse, his mother, and his brother.
D. His spouse, his mother, his brother, and his niece.

Answer 1

B. His spouse and his mother.

In California, the surviving spouse or domestic partner takes 1/2 of the decedent’s separate property if the decedent is not survived by issue but is survived by a parent or issue of a parent. Here, the decedent has no surviving issue but has a surviving parent, his mother. The surviving spouse will take 1/2 of the decedents separate property. The share not passing to the surviving spouse passes to the decedent’s parents or the surviving parent. Thus the decedents mother will take the other 1/2 of the decedent’s separate property. Because a parent survives, the decedent’s brother and niece, who are issue of the decedent’s parent, do not take. Had the mother pre-deceased the decedent, the brother and niece would have taken one forth each.

Question 2

How are the intestate shares of the descendants distributed?

A. Equally.
B. Strict per stirpes.
C. Per capita with representation.
D. Per capita at each generation.

Answer 2

C. Per capita with representation.

In California, the intestate shares of descendants are distributed per capita with representation; i.e., property is divided into equal shares at the first generational level at which there are living takers, and the shares of deceased persons at that level pass to their issue by representation. At common law and in a small minority of states, the distribution is under a strict per stirpes method; i.e., the division is made at the child level, regardless of whether there are any living takers at that level, and deceased children’s shares pass to their descendants by representation. Some states distribute intestate shares per capita at each generation; i.e., persons in the same degree of kinship to the decedent always take equal shares. However, under no method do all descendants share equally.

Question 3

Which of the following never inherit from in an intestate decedent’s estate?

A. The decedent’s uncle.
B. The issue of the decedent’s pre-deceased domestic partner.
C. The decedent’s former spouse.
D. The parents of the decedents pre-deceased spouse

Answer 3

C. The decedent’s former spouse.

A decedent’s property never passes to the decedent’s former spouse. If a decedent is not survived by a spouse, domestic partner, issue, parent, issue of a parent, or grandparent, the property passes to the issue of a grandparent. The decedent’s uncle is the issue of the decedent’s grandparent and thus could inherit. If there is no surviving spouse, domestic partner, issue, parent, issue a parent, grandparent, or issue of grandparents, the property passes to the issue of the decedent’s pre-deceased spouse or domestic partner. If there’s no surviving spouse, domestic partner, issue, parent, issue a parent, grandparent, or issue of grandparents, issue of the decedent’s pre-deceased spouse or domestic partner, or next of kin, the property passes to the parents of the decedent’s predeceasing spouse or domestic partner.

Question 4

The decedent and her only child were involved in a plane crash. Only the child was alive when the emergency team reached the crash site, but she died shortly after arriving at the hospital. The child, who left no will, is survived by a spouse. The decedent is survived by only a brother. The decedent left a sizable intestate estate and a life insurance policy naming the child as the sole beneficiary. Who will share in the decedents estate and the insurance proceeds?

A. The decedent’s brother will take the estate, but the child’s spouse will take the insurance proceeds.
B. The child’s spouse will take the estate and the insurance proceeds.
C. The decedent brother will take the estate and the insurance proceeds.
D. The child’s spouse will take the estate, but the decedent’s brother will take the insurance proceeds.

Answer 4

A. The decedent’s brother will take the estate, but the child’s spouse will take the insurance proceeds.

In California, a person who fails to survive a decedent by 120 hours is deemed to have pre-deceased the decedent for purposes of intestate succession, and the heirs are determined accordingly. However, for all other purposes in which the right of a person to succeed a property interest is conditional upon surviving another (e.g., property passing by Will, joint tenancy property, life insurance proceeds), if there is clear and convincing evidence that the person survived the decedent by even a short time, the person succeeds to the property. Here, the decedent was dead would help arrived, and the child survived until after she arrived at the hospital. Having survived the decedent, the child will take the insurance proceeds. Since the child died intestate, her spouse will take the proceeds through her estate. However, since the child did not survive the decedent by 120 hours, she is deemed to have pre-deceased the decedent for purposes of intestate succession. Thus, the decedents brother is her only heir and will inherit her estate.

Question 5

If one of two joint tenants kills the other, how is title to the property held?

A. The killer owns the entire property.
B. The killer and the victim’s estate each own 1/2 of the property as tenants in common.
C. The state and the victims estate each on 1/2 of the property as tenants in common.
D. The victim’s estate owns the entire property.

Answer 5

If one joint tenant kills the other, the killer and the victims estate each on 1/2 of the property as tenants in common. One who Filoni us Lee and intentionally brings about the death of the decedent forfeit any interest in the decedents estate. If the killer is a joint tenant with the victim, the killing severs the right of survivorship; in fact, the state is treated as a tenancy in common. The victims 1/2 interest passes under her will or by intestacy as though the killer pre-deceased her. However, the killer does not forfeit his interest in the property; he continues to hold his undivided 1/2 interest in the property as a tenant in common with the victims estate.

Question 6

All of the following are requirements for do execution of a will EXCEPT:

A. The testator must sign or acknowledge the will or his signature in the joint presence of two witnesses.
B. The witnesses must know that the document they are witnessing is a will.
C. The witnesses must sign within the testator’s lifetime.
D. The witness is must signed in the presence of each other.

Answer 6

D. The witness is my sign in the presence of each other.

The witnesses need not sign in the presence of each other and may sign at any time during the testator’s lifetime. The testator my sign or acknowledge the will or his signature in the joint presents of at least two witnesses, and the witnesses must understand that instrument been witnessed is the testator as will.

Question 7

If a testing witness is also a beneficiary:

A. The wheel cannot be probated if the beneficiary is one of only two witnesses.
B. The will is valid but the devise to the subscribing witness is void.
C. The will is valid, but the device raises a rebuttable presumption that it was procured by dress, minutes, fraud, or undue influence.
D. The will is valid, but the witness-beneficiary is entitled only to the lesser of the device or her intestate share.

Answer 7

C. The will is valid, but the device raises a rebuttable presumption that it was procured by duress, menace, fraud, or undue influence.

And interested witness is competent to testify, and the wheel can be probated, but the device raises a presumption of duress, menace, fraud, or undue influence. This presumption is rebuttable, and the device is not void. The witness is not limited to the lesser of the device or her intestate share. If the witness rebut the presumption, she can take the devise. Only if the witness fails to rebut the presumption, is she entitled to as much of the device as does not exceed this year she would’ve taken if that will not be established.

Question 8

If the will proponent establishes by clear and convincing evidence that the testator intended the instrument executed to be his will, the instrument will be admitted to probate despite which of the following?

A. The testator and his spouse mistakenly signed each other’s wills.
B. The testator sign the will in front of the first witness and acknowledged his signature to the second witness the next day.
C. After the testator’s attorney read the will to the testator over the phone, the testator directed his attorney to sign the will for the testator.
D. The testator was 17 years old when the will was executed and died at the age of 75.

Answer 8

B. The testator signed the wheel in front of the first witness and acknowledged his signature to the second witness the next day.

Under California is harmless error doctrine, if a will is not executed in compliance with the witnessing requirements, it may nevertheless be admitted to probate if the proponent establishes by clear and convincing evidence that at the time the testator signed the document, he intended the document to be his will. Only choice (B) involves the witnessing requirements. The harmless error doctrine of the UPC applies to noncompliance with any of the formal requirement, but the California doctrine is limited to the witnessing requirements. Neither doctrine would permit probate of a will executed by a minor.

Question 9

A valid holographic will requires which of the following?

A. The entire instrument in the testator’s hand writing.
B. Intent that the paper serve as a will.
C. The date of execution.
D. The testator’s signature at the end.

Answer 9

B. Intent that the paper serve as a will.

A holographic will is one that is hand written and signed by the testator but has no witnesses. To give a fact to the paper as a will, the writer must have had the present intent that the paper serve as his will. (A) misstates the rule. A portion of the will maybe typewritten. And California, a holographic will is valid if the signature and the material provisions are in the hand writing of the testator. (C) is incorrect because a date on the holographic will is helpful, but it is not required. A holographic will must be signed by the testator, but there is no requirement that it be signed at the end of the well. The signature can even be found in the opening caption. Thus, (D) is not required.

Question 10

A testator execute a valid holographic will that bequeaths $10,000 to Ben and the residue to Rhonda. Two years later, the testator crosses out the bequest to Ben and writes above it, “$20,000 to Beth.” If the will remains the same at the testator’s death, what is the effect of the testator’s action?

A. Beth will take $20,000, and Rhonda will take the residue.
B. The entire will is revoked.
C. The legacy to Ben is revoked, and Rhonda will take the entire estate.
D. Then will take $10,000, and Rhonda will take the residue.

Answer 10

A. That will take $20,000, and Rhonda will take the residue.

Like most statesthat recognize holographic wills, California gives effect to handwritten changes made by the testator after the holographic will is completed. Thus, the testator’s changes here will be given effect. It does not even matter that the testator did not sign or initial the changes. The testator’s prior signature is deemed adopted at the time the inter-lineation is made, and all the material terms are in the testator’s own handwriting. These types of interlineations are not given effect if made to an attested will unless they constitute a holographic codicil. If done to an attested will, the additional material would not be given effect, but the crossing out of Ben’s legacy would likely revoke it-leaving Rhonda with the entire state.

Question 11

Under which doctrine must the will proponent show that an extrinsic document offered for probate was present at the will’s execution and intended by the testator to be a part of the will?

A. Republication by codicil.
B. Integration.
C. Incorporation by reference.
D. Acts of independent significance.

Answer 11

B. Integration.

Under the doctrine of integration, the will proponent must show that an extrinsic document offered for probate was present at the will’s execution and intended by the testator to be a part of the will. The requirements of presence and intent are presumed when there is a physical connection of the pages, (e.g., a staple) or an internal sense of connection shown by provisions running from one page to the next. Under the doctrine of republication by codicil, a will is treated as having been executed (“republished”) on the date of the last validly executed codicil. A codicil is a later testamentary instrument that amends, alters, or modifies a previously executed will; it must be executed with the same formalities as a will. Since a codicil is a later instrument, it’s presence at the will’s execution cannot be required. Under the doctrine of incorporation by reference, an extrinsic document not present at the time the will was executed may be probated as part of the will if: (i) the document was in existence at the time the will was executed, (ii) the will sufficiently describes the document to permit its identification, and (iii) there is satisfactory proof that the proffered document is the one described in the will. Under the doctrine of acts of independent significance, a will may dispose of property by reference to future unattested acts and events that have significance apart from their effect on the dispositions made by the will

Question 12

A decedent may dispose of items of tangible personal property in a writing that does not comply with all of the requirements for incorporation by reference if certain other requirements are met. Each of the items below represent one of those requirements EXCEPT:

A. The writing must be dated.
B. The writing must be in the testator’s handwriting or signed by the testator.
C. The writing must be in existence when the will is executed.
D. The writing must describe the items and recipients with reasonable certainty.

Answer 12

C. The writing must be in existence when the will is executed.

Lists disposing of items of tangible personal property are valid if: (i) an unrevoked will refers to the writing; (ii) the writing is dated and is either in the tesator’s handwriting or is signed by the tesator; (iii) the writing describes the items and recipients with reasonable certainty. The writing need not be in existence when the will is executed (i.e., it may be prepared before or after the execution of the will), and it may be altered by the testator after its initial preparation.

Question 13

Is a will valid that provides that the testator’s property is to be distributed in accordance with the subsequently executed will of another person valid?

A. Yes, under the doctrine of incorporation by reference.
B. Yes, under the doctrine of acts of independent significance.
C. No, because the making of a will is a testamentary act.
D. No, because a pour-over gift may be made only to an inter vivos trust, not another person’s will.

Answer 13

B. Yes, under the doctrine of acts of independent significance.

A will providing that the testator’s property is to be distributed in accordance with the subsequently executed will of another person is valid under the doctrine of acts of independent significance. The doctrine provides that a will may dispose of property by reference to future unattested acts and events that have significance apart from their effect on the dispositions made by the will. The doctrine has been used with regard to acts of the testator as well as to acts of third persons. If a testator directs that his property be distributed in accordance with the will of another person whose will has already been executed and the other requirements of incorporation are met (i.e., the testator’s will sufficiently describes the other person’s will to permit its identification and manifests an intent to incorporate the other person’s will), the other person’s will can be incorporated into the testator’s will by reference. However, since the question provides that the other person’s will was executed subsequently, incorporation by reference cannot apply. If, as here, the property is to be disposed of as provided in the future will of another, the doctrine of acts of independent significance applies, and the gift is valid. Although the other person’s making of a will is a testamentary act, it has significance independent from disposing of the original testator’s property, i.e, it directs the disposition of the other person’s estate. A pour-over gift is a gift from a will to an inter vivos trust. Merely directing that property be disposed of according to the will of another does not constitute an attempted pour-over gift to another’s will.

Question 14

Which of the following assets may be disposed of by will?

A. Life insurance proceeds.
B. Property held in a joint tenancy.
C. Property held in a Totten trust.
D. The testator’s share of community property with right of survivorship.

Answer 14

C. Property held in a Totten trust.

A Totten trust, which is a bank account trust that arises when a party deposits money “in trust” for another party. If not revoked, the money passes to the beneficiary on the depositor’s death. However, a Totten trust may be revoked by the depositor’s will. However, a will generally cannot make a gift of nonprobate assets, i.e., interests that pass at death other than by will or intestacy. There are three principal categories of nonprobate assets: (i) property passing by contract, (ii) property passing by right of survivorship, and (iii) property held in trust. Life insurance proceeds (and death benefits under an employee retirement plan) are payable to the beneficiary designated by the insured (or employee) in his contract with the life insurance company (or retirement plan carrier). Property held by the decedent and another person as joint tenants with right of survivorship pass directly to the survivor outside the probate process. Community property with right of survivorship, like joint tenancy property, passes directly to the survivor outside of probate when an owner dies (unlike other community property where the decedent’s half can be devised by, e.g., his will).

Question 15

All of the following statements concerning revocation by a subsequent instrument are true EXCEPT:

A. The terms of a prior will are nullified by inconsistent provisions in a subsequent instrument.
B. The revoking instrument must make a disposition of property.
C. A holographic will can expressly revoke a formal will.
D. A revoking instrument that does not dispose of property need not be attested.

Answer 15

B. The revoking instrument must make a disposition of property.

A revoking instrument need not dispose of property to be valid. A testator can simply execute an instrument stating that his will is revoked. If he fails to execute another will, his estate will pass under the intestacy laws. If a testator executes a will and subsequently executes a second will that does not expressly revoke the first will, the second will controls and impliedly revokes the first will to the extent of any inconsistent provisions. The two instruments are read together to the extent possible; i.e., the second instrument is treated as a codicil to the will. A revoking instrument must be executed with the formalities required for execution of wills. Since a holograph is a method of valid execution, any will may be revoked by a holographic will or codicil.

Question 16

Assuming the requisite intent, in which of the following circumstances has the will been revoked by physical act?

A. The will is found in a sealed envelope marked “VOID” on the outside.
B. The will is found with the testator’s signature crossed out.
C. A codicil to the will is found burned in its entirety.
D. An unexecuted copy of the will is found torn to pieces.

Answer 16

B. The will is found with the testator’s signature crossed out.

Assuming the requisite intent, a will found with the testator’s signature crossed out has been revoked by physical act. A will may be revoked by physical act by burning, tearing, cutting, obliterating, or canceling a material portion of the will with the intent to revoke. Words of cancellation must touch the words of the will; thus, writing the word “VOID” on the outside of the envelope containing the will is ineffective to revoke the will. Although burning an entire will is a sufficient act of revocation, a physical act of revocation performed on a codicil revokes only the codicil, not the prior will. Likewise, although tearing a will to pieces is a sufficient act of revocation, the destruction of an unexecuted copy of a will does not revoke the will, even if accompanied by the requisite intent. But where a will has been executed in duplicate (i.e., both copies are signed), an act of revocation performed on either copy revokes the will.

Question 17

Which of the following circumstances constitutes a revocation of a will by physical act?

A. Testator accidentally tears up her will thinking it was another document, but later is glad she did so.
B. T tells X to burn the will she left at his house because she wants to make a new one.
C. T tells X she regrets leaving everything to Y in her will; X burns T’s will.
D. T is dying and asks X to tear up the will she hands him; X does so in front of T.

Answer 17

D. T is dying and asks X to tear up the will she hands him; X does so in front of T.

If the testator asks someone to tear up the will and he does so in front of her, that constitutes revocation by physical act. Revocation by physical act requires that the will be “burned, torn, canceled, obliterated, or destroyed,” and that the act be done with present intent to revoke the will. Accidental destruction does not satisfy the present intent requirement. Someone other than the testator can perform the act, but it must be done at the testator’s direction and in her presence.

Question 18

Revocation by physical act can be effectuated by obliteration of the will. Which of the following is NOT sufficient to constitute obliteration?

A. Drawing lines through the parts the testator intends to revoke.
B. Erasing the parts the testator intends to revoke.
C. Writing the word “VOID” on the back of the will.
D. Drawing a line across the face of the will.

Answer 18

C. Writing the word “VOID” on the back of the will.

Writing “VOID” on the back of the will would not be sufficient, because the obliteration must occur on a material part of the will. A will may be obliterated by drawing a line across the face of the will, by drawing lines through words, or by erasing words. For partial revocation, this can be done only to those portions which the testator intends to revoke.

Question 19

In addition to revoking all will provision in favor of a former spouse, dissolution of a marriage also generally revokes the former spouse’s interest in each of the following items EXCEPT:

A. Life insurance policies.
B. The right of survivorship in joint tenancy property.
C. Revocable trusts.
D. Fiduciary appointments.

Answer 19

A. Life insurance policies.

In addition to bequests under the testator’s will, dissolution of a marriage or domestic partnership revokes nonprobate transfers in favor of the former spouse or partner, such as an interest in a revocable trust or a fiduciary appointment. It does not, however, revoke a beneficiary designation on a life insurance policy. Dissolution also revokes joint tenancy and community property interests with rights of survivorship; i.e., the interest is severed and there is no longer a right of survivorship

Question 20

If ____________________ occurs after the execution of a valid will, it does NOT result in a revocation of any will provisions.

A. An annulment.
B. A marriage.
C. A legal separation.
D. The birth of children.

Answer 20

C. A legal separation.

A legal separation that does not terminate the status of husband and wife or domestic partners does not constitute a dissolution and does not cause a revocation. Divorce or annulment following execution of a will revokes all gifts and fiduciary appointments in favor of the former spouse. A testator’s subsequent marriage partially revokes her will by operation of law to the extent necessary to provide the new spouse with an intestate share. Likewise, the omitted child statute provides that a child born or adopted after the will’s execution is entitled to a share of the estate and revokes the will to that extent.

Question 21

In which of the following circumstances will the testator’s estate be disposed of according to Will-1?

A. Will-2 expressly revokes Will-1. The testator executes a valid codicil whose sole provision revokes Will-2. The testator tells his sister that he is happy Will-1 will dispose of his property.
B. Will-2 expressly revokes Will-1. The testator, alone at his lakeside cabin, decides that he prefers Will-1 and proceeds to burn Will-2.
C. Will -2 expressly revokes Will-1. The testator shreds Will-2. Two years later, the testator handwrites and signs a document entitled Codicil to Will-1, which makes a devise to his niece.
D. Testator burns Will-1 and executes Will-2. Testator later shreds Will-2 and declares in front of witnesses that he is reviving Will-1.

Answer 21

C. Will -2 expressly revokes Will-1. The testator shreds Will-2. Two years later, the testator handwrites and signs a document entitled Codicil to Will-1, which makes a devise to his niece.

A revoked will still in physical existence may be revived through execution of a subsequent codicil. California recognizes handwritten, unattested (holographic) codicils. Thus, the codicil republished Will-1, and the testator’s estate will be disposed of according to its terms. In California revival depends on the testator’s intent, the nature of evidence offered to show that intent, and the way the testator revoked Will-2. (A) does not revive Will-1 because when the revoking instrument is itself revoked by a subsequent instrument (here, a codicil), Will-1 is not revived except to the extent it appears from the terms of the codicil that the testator intended Will-1 to take effect. Here, the codicil’s only provision revokes Will-2; it does not mention Will-1. Extrinsic evidence, such as the testator’s declarations are not admissible to prove his intent to revive Will-1. (B) fails to revive Will-1 because even though extrinsic evidence is admissible when the revoking instrument is revoked by physical act, here there is no evidence to introduce. Testator was alone and there is no evidence from the circumstances that he intended to revive Will-1. (D) is incorrect because a will that was revoked by physical act is not revived by destruction of a later will.

Question 22

A testator by her will devises the ranch, which is community property, to her friend. The testator devises all of her money and stocks, which are separate property, to her spouse. Which of the following statements regarding the distribution of the testator’s estate is true?

A. The friend will take the ranch if the separate property passing to the spouse is worth more than one-half of the ranch.
B. The will fails, and the estate will be distributed under the intestacy laws.
C. The spouse owns the ranch outright, and the friend will be entitled to payment from the estate equal to one-half the value of the ranch.
D. The spouse must choose between asserting her right to her one-half interest in the ranch and her gift under the will.

Answer 22

D. The spouse must choose between asserting her right to her one-half interest in the ranch and her gift under the will.

A testator can devise only her one-half of the community property. Because one-half of the community property already belongs to the surviving spouse, the testator can dispose of the spouse’s half only with her consent. Therefore, the testator puts the surviving spouse to an election (the widow’s election) between taking her half of the community property or taking what the testator gives her by her will. The will does not fail. The value of the property passing to the spouse does not affect her claim to one-half of the ranch. The spouse does not own the ranch outright because the testator is free to dispose of her one-half interest in community property by will as she chooses.

Question 23

In his duly executed will, a testator bequeaths $10,000 to his friend and the rest of his separate and community estate to his wife. When the will was executed, the testator had a son. Subsequently, the testator and his wife adopted a daughter. At the testator’s death, his separate estate is worth $300,000. How much is the adopted daughter entitled to take?

A. Nothing.
B. $200,000.
C. $100,000.
D. $95,000.

Answer 23

A. Nothing.

Under California’s omitted child statute, a child born or adopted after the execution of a will is entitled to take her intestate share of the testator’s property. If an intestate decedent is survived by a spouse and more than one descendant, the spouse takes one third of the separate property and the descendants take two-thirds. Here, the daughter’s one-third intestate share would be $100,000. However, an omitted child does not receive her intestate share if the testator had one or more children and the time the will was executed and devised substantially all of his estate to the other parent of the omitted child. Here, the testator had a son when he executed his will,and the testator devised nearly all of his estate to the daughter’s other parent. Thus, the daughter takes nothing.

Question 24

A court is most likely to give effect to which of the following alterations to the bequest “I devise my farm to A for life, remainder to B, and my residuary estate to C”?

A. Crossing out “for life, remainder to B.”
B. Crossing out “A for life, remainder to.”
C. Crossing out “my farm to A for life, remainder to B, and.”
D. No alterations, because a will may not be partially revoked by physical act.

Answer 24

C. Crossing out “my farm to A for life, remainder to B, and.”

A court is most likely to give effect to the change resulting in the bequest “I devise my residuary estate to C.” California authorizes partial, as well as total, revocation by physical act. Extrinsic evidence is admissible to determine whether the testator intended a partial or full revocation. However, an act of cancellation or destruction cannot be used by the testator to increase a gift in the will other than the residue. The testator can always increase the size of a residuary gift by canceling or obliterating a general or specific bequest. Crossing out “for life, remainder to B” would increase A’s specific bequest from a life estate to a fee simple and thus will not likely be given effect. Likewise, crossing out “A for life, remainder to” would increase B’s specific bequest from a vested remainder to a fee simple and also will not be given effect. Crossing out “my farm to A for life, remainder to B, and” would increase C’s residuary bequest by adding the farm and will most likely be given effect.

Question 25

If the testator failed to provide in his will for a living child because he mistakenly believed the child to be dead, the child will take ____________________ . A. A share equal to her intestate share. B. A share equal to that of the testator’s other children. C. One-quarter of the separate property in the estate. D. Nothing

Answer 25

A. A share equal to her intestate share. If at the time of execution of a testamentary instrument (a will or revocable trust) the testator fails to provide for a living child solely because the testator believes the child is dead or because the testator is unaware of the child's birth, the child receives a share equal in value to the share she would have received if the testator had died intestate.

Question 26

If a testator executes his will and later marries, but then dies before executing a new will, the surviving spouse will take: A. Only the testator’s share of community property. B. Only the surviving spouse’s intestate share of the testator’s separate property. C. The testator’s share of community property plus one-fourth of the testator’s separate property. D. The testator’s share of community property plus the surviving spouse’s intestate share, up to one-half the value of the testator’s separate property.

Answer 26

D. The testator’s share of community property plus the surviving spouse’s intestate share, up to one-half the value of the testator’s separate property. California's omitted spouse/domestic partner statute protects a spouse or domestic partner from unintentional omission from the decedent's testamentary instruments. When a testator marries after executing his will and does not otherwise provide for his surviving spouse, the surviving spouse will take the testator’s share of community property plus the surviving spouse’s intestate share of the testator's separate property. The surviving spouse's intestate share is, however, limited to one-half the value of the separate property.

Question 27

A testator’s will bequeaths property “to my son if he survives me.” The son predeceases the testator and is survived by a wife and a daughter. The son's will bequeaths all of his property to a charity. Who takes the testator's property? A. The son's wife. B. The testator’s residuary beneficiaries. C. The charity. D. The son's daughter.

Answer 27

B. The testator’s residuary beneficiaries. Here, the testator’s residuary beneficiaries take the property because the anti-lapse statute does not apply. California's anti-lapse statute operates to save a gift to a predeceased beneficiary if the beneficiary (i) was kindred of the testator, and (ii) left descendants who survived the testator. The beneficiary’s descendants take by substitution under the anti-lapse statute; the gift does not pass to the beneficiary’s estate. Thus, the gift would not pass pursuant to the deceased beneficiary's will. Here, the son is the testator’s descendant and left a surviving descendant (the daughter). If the anti-lapse statute were to apply, the daughter would take the property by substitution; neither the wife nor the charity would have any interest. However, the anti-lapse statute does not apply when words of survivorship are associated with the gift. Because the bequest was contingent on the son’s surviving the testator and the son predeceased the testator, the gift fails and passes to the testator’s residuary beneficiaries.

Question 28

The anti-lapse statute will apply to save the gift for which of the following predeceasing will beneficiaries? A. The testator’s spouse, who is survived by three children. B. The aunt of the testator’s surviving spouse, who is survived by a grandchild. C. The testator’s third cousin, who is survived by his mother. D. The testator’s adopted son, who is survived by his spouse.

Answer 28

B. The aunt of the testator’s surviving spouse, who is survived by a grandchild. California's anti-lapse statute operates to save the gift if the predeceasing beneficiary (i) was kindred of the testator (or was kindred of a surviving, deceased, or former spouse of the testator) and (ii) left descendants who survived the testator. "Kindred" includes the blood relatives (including half-blood relations), as well as adopted children and stepchildren. The surviving spouse's aunt is the surviving spouse's kindred and grandchildren are descendants. Thus, the aunt's grandchildren will take by substitution under the anti-lapse statute. The testator's spouse is not kindred, thus the statute does not apply. The testator's third cousin is a blood relative, but he is not survived by descendants. His mother is an ascendant. Thus, the anti-lapse statute does not apply. The anti-lapse statute would apply to the testator's adopted son, but he did not leave any descendants surviving the testator. Thus, the statute will not apply to save his gift

Question 29

Which of the following transfers is most likely to be considered a testamentary transfer that must comply with the requisite will formalities in order to be enforceable? A. A deed deposited in escrow with delivery conditioned upon the grantor’s death. B. A joint bank account. C. A contract that disposes of property upon the promisor’s death. D. A Totten trust.

Answer 29

C. A contract that disposes of property upon the promisor’s death. A contract that disposes of property upon the promisor’s death will most likely be considered a testamentary transfer that must comply with the requisite will formalities in order to be enforceable. A deed deposited in escrow with delivery conditioned upon the grantor’s death may be a valid nontestamentary transfer. Likewise, a joint bank account “with right of survivorship” is generally held effective to give the survivor the absolute right to all of the money outside the probate process. However, in many states, extrinsic evidence is admissible to show that the dead depositor did not intend a gift to the survivor, and that the account was only a convenience for paying the depositor’s bills. A Totten trust is a deposit of money in the depositor’s own bank account in trust for another person. Such a transfer creates a valid revocable trust, which is a nontestamentary transfer, even though the depositor retains complete control over the account during her lifetime and the transfer is complete only upon her death. The trust is revoked to the extent of withdrawals made by the depositor before her death, may be revoked by the depositor’s will, and is reachable by the depositor’s creditors during her lifetime.

Question 30

Which of the following is the best example of the operation of the class gift rule? A. If a will makes a gift to “the children of my friend X,” then only those children of X who survive the testator will share the gift. B. If a will makes a gift to “each of my three friends, A, B, and C,” then only those friends who survive the testator will share the gift. C. If a will makes a gift to “the children of my friend X,” the share of any of X’s children who predecease the testator will pass to their descendants. D. If a will makes a gift to “each of my three friends, A, B, and C,” the share of any of the three friends who predecease the testator will pass to their descendants.

Answer 30

A. If a will makes a gift to “the children of my friend X,” then only those children of X who survive the testator will share the gift. To be a class gift, the gift must be made to a class (e.g., “children”), rather than individually named beneficiaries, (e.g., “A, B, and C”). Under the class gift rule, the class closes when any member can call for distribution of the gift. In the case of testamentary gifts, the class closes at the testator's death. Only the members of the class alive when the class closes share in the gift--unless the anti-lapse statute applies. Thus, (A) is the best example of the operation of the class gift rule. (B) and (D) are gifts to individuals, not class gifts. (C) is a class gift, but it describes the application of the anti-lapse statute rather than the class gift rule. (C) also misstates the anti-lapse statute because the statute applies only to the testator's kindred, not children of friends.

Question 31

Which of the following testamentary gifts would most likely be construed as a general legacy? A. "$10,000 in Acme Corporation stock," when the testator owns only Baker Corporation stock. B. "$10,000 from my savings account at ABC Bank," when the testator has $20,000 in the savings account. C. "All of my property in Alameda County." D. "My historic Ford pickup."

Answer 31

A. "$10,000 in Acme Corporation stock," when the testator owns only Baker Corporation stock. A general legacy is a gift to be paid out of the estate’s general assets, without any requirement that the funds come from a specific source. If the gift is of a particular item or items, then it is considered a specific legacy, unless the testator does not own the item (e.g. stock shares) and intends for the executor to purchase it for the beneficiary. In (A), the testator did not own Acme company stock, so the bequest will be construed as a general legacy. (B) is a demonstrative legacy because it is a gift of a general amount that is to be paid from a particular source or fund. A demonstrative legacy is a hybrid—it is treated as a specific legacy to the extent the source of payment is available and a general legacy to the extent of any shortfall of that source of payment. Here, there is an adequate amount to cover the payment, so it will not be construed as a general legacy. (C) and (D) are specific devises. A specific devise or legacy is a gift of a particular item of property distinct from all other objects in the testator’s estate.

Question 32

A spouse or domestic partner may execute a waiver of the right to receive property or benefits from the spouse’s or domestic partner’s estate. Which of the following statements is true? A. To be enforceable, the waiver must be in writing and signed by the waiving spouse. B. To be enforceable, the waiver must be attested by two witnesses. C. The waiver does not apply to property passing by intestate succession. D. The waiver does not apply to property passing by nonprobate transfer.

Answer 32

A. To be enforceable, the waiver must be in writing and signed by the waiving spouse. To be enforceable, a spouse’s or domestic partner’s waiver of rights must be in writing and signed by the waiving spouse or domestic partner. It need not be attested by witnesses. Such a waiver applies to both intestate property and property passing by nonprobate transfer.

Question 33

Assuming no other evidence is available, in which of the following situations will the gift be adeemed? A.The testator’s will bequeaths his beloved Corvette to his niece. The Corvette is destroyed in the accident that claimed the testator’s life. B. The testator’s will bequeaths $20,000 to his brother, to be paid from the proceeds of the sale of his Apple stock. The testator sold his Apple stock six months before his death. C. The testator’s will bequeaths Blackacre to her friend. Subsequent to the execution of the will, a conservator is appointed to manage the testator’s affairs. The conservator sells Blackacre to pay for the testator’s care. D. The testator’s will bequeaths her diamond necklace to her daughter. The testator gave the necklace to her niece two years before her death.

Answer 33

D. The testator’s will bequeaths her diamond necklace to her daughter. The testator gave the necklace to her niece two years before her death. When specifically bequeathed property is not in the testator's estate at death, the bequest may adeem (fail). California takes the testator's intent into account in determining whether a gift is adeemed, and courts use this and statutory exceptions to avoid the harsh effects of ademption. Ademption occurs when a transferor's lifetime acts toward property indicates that the transferor intended to revoke the gift. When the testator gave the specifically bequeathed necklace to her niece, the intent to revoke the gift to her daughter can be inferred. There is no change of form or proceeds to trace. (A) is incorrect because when a specifically bequeathed item is destroyed in the same incident that took the testator's life, the testator could not have intended the gift to fail. Thus, it does not. (B) is incorrect because the bequest to Ben is not a specific bequest. It is a demonstrative legacy, and ademption does not apply to general or demonstrative legacies. (C) is incorrect because there is a statutory exception that applies when property is sold by a conservator or guardian.

Question 34

To have mental capacity to make a will, a testator must understand each of the following EXCEPT: A. The nature and extent of her property. B. The nature of her surroundings. C. The persons who are the natural objects of her bounty. D. The nature of her act.

Answer 34

B. The nature of her surroundings. To have mental capacity to make a will, the testator must have sufficient capacity to be able to understand the nature of her act (that she is executing a will), the nature and extent of her property, and the persons who are the natural objects of her bounty. Although it may be evidence of lack of capacity if the testator is unaware of her surroundings, there is no requirement that she understand that fact.

Question 35

The capacity required for making a will is a _____________________ standard of capacity than that required to make a contract, and is measured at the ____________________. A. Higher; time the will was executed. B. Higher; time of death. C. Lower; time the will was executed. D. Lower; time of death.

Answer 35

C. Lower; time the will was executed. The capacity required for making a will is a lower standard of capacity than that required to make a contract, and is measured at the execution of the will. A person must be 18 years of age or older and have the requisite mental capacity to make a will. The testator must have sufficient capacity to be able to understand (i) the nature of her act, (ii) the nature and extent of her property, and (iii) the natural objects of her bounty. The fact that the testator was very old, physically frail or ill, possessed a failing memory, or was a habitual drinker or addicted to drugs does not mean that she lacked the requisite capacity.

Question 36

A beneficiary who contests a will with a no-contest clause: A. Does not forfeit her bequest, because no-contest clauses are invalid. B. Does not forfeit her bequest if the challenge was brought in good faith and based on probable cause. C. Forfeits her bequest if the challenge is unsuccessful even if it was brought in good faith and based on probable cause. D. Forfeits her bequest, regardless of whether the contest is successful, because the contest itself triggers forfeiture.

Answer 36

B. Does not forfeit her bequest if the challenge was brought in good faith and based on probable cause. A beneficiary who contests a will with a no-contest clause does not forfeit her bequest if the challenge is unsuccessful but was brought in good faith and based on probable cause. The contest itself does not trigger forfeiture unless the court finds that no reasonable grounds existed for contesting the will (i.e., it was a suit designed to provoke a settlement). Whether the beneficiary had probable cause is a question of fact. If the contest is successful and the will is denied probate, there is never forfeiture because the no-contest clause is tossed out along with the will.

Question 37

Which of the following is NOT an potential factor in establishing undue influence? A. The dispositions in the will seem unnatural. B. There was opportunity to influence the testator. C. The testator was susceptible because of age or illness. D. The beneficiary was related to the testator.

Answer 37

D. The beneficiary was related to the testator. The fact that a beneficiary is related to the testator is not in itself a factor in proving undue influence. In fact, if the beneficiary is unrelated, that may be considered a factor if the disposition seems unnatural, although this factor has less value than others, since a testator may dispose of his property as he wishes. The opportunity to influence and the susceptibility of the testator due to age or illness are also factors a court would consider.

Question 38

Except for the ____________________ relationship, each of the following relationships between the testator and beneficiary raises a presumption of undue influence if the beneficiary participates in an activity related to the execution of the will and unduly benefits from it. A. Doctor-patient B. Priest-penitent. C. Attorney-client D. Parent-child.

Answer 38

D. Parent-child. A presumption of undue influence arises when (i) a confidential relationship existed between the testator and the beneficiary who is alleged to have exercised undue influence, (ii) the beneficiary actively participated in some way in procuring or drafting the will, and (iii) the beneficiary unduly benefits from the instrument. A confidential relationship, e.g., those recognized between priest-penitent, doctor-patient, or attorney-client, is one in which one person relied heavily upon, and placed more than a normal amount of confidence in, another person. A parent-child relationship is not considered a confidential one unless there is evidence of an unusual amount of trust and reliance placed on the parent or child. If a presumption of undue influence arises, the burden of proof shifts to the proponent.

Question 39

Which of the following is true of fraud in the inducement? A. The will or gift affected by the fraud must be set aside. B. The court will consider the testator's own statements as the best evidence of her intent. C. The court will not consider any extrinsic evidence on the testator's probable intent other than the testator's own statements. D. The will is valid despite the fraud, because the testator intended to execute the instrument and is presumed to know its contents.

Answer 39

A. The will or gift affected by the fraud must be set aside. When fraud in the inducement is alleged, a court will consider extrinsic evidence, such as family circumstances, to determine the testator’s probable intent. The court will not consider the testator's oral declarations as to his probable intent. If fraud is found, the the will or gift affected by the fraud must be set aside.

Question 40

Which of the following is true concerning contracts to make or to not revoke a will? A. Contracts to make a will need not be in writing unless they pertain in whole or in part to real property. B. The execution of a joint will or mutual wills raises a presumption of a contract not to revoke. C. A will executed in breach of a contract cannot be probated if the nonbreaching party objects. D. Joint wills and mutual wills executed pursuant to a contract are revocable.

Answer 40

D. Joint wills and mutual wills executed pursuant to a contract are revocable. Joint wills or mutual wills are revocable at any time during the testator's life in the same manner as any other will. This is true even if the wills are executed pursuant to a contract providing that the wills shall not be revoked, although revocation could give rise to an action for breach of contract. In California, all contracts to make a will must be in writing, regardless of whether real property is involved. Additionally, the execution of a joint will or mutual wills does not create a presumption that there is a contract not to revoke. Finally, if a party to a contract to make a will or not to revoke a will dies with a revised will that breaches the contract, that revised will must be admitted to probate. The nonbreaching party has a cause of action for breach of contract, but it the breach does not affect the validity of the revised will.