Wills and trusts Flashcards
(45 cards)
testamentary trust rule
for a valid testamentary trust, there must be
(1) an intent to create a trust,
(2) a beneficiary
(3) trust property,
(4) and a valid trust purpose
- there must also be a trustee but it wont fail for lack of one
Where may you get the essential elements of a testamentary trust from?
(1) the terms of the will, (2) an existing writing incorporated by reference, or (3) the exercise of a power of appointment created in the will.
Charitable trust rules
(1) they must be for a charitable purpose
(2) they may be perpetual
(3) the cy pres doctrine applies when necessary
(4) they are usually enforceable by the atty general
Mixed trust def
when the beneficiaries of a single trust are both charitable and noncharitable, the trust is a mixed trust and the charitable trust special rules do not apply
If mixed trust, two separate trusts will be found if…
there is some indication as to
(1) how much of the corpus the settlor intended to be applied towards charitable purposes, OR
(2) how long the settlor intended the corpus to be applied towards charitable purposes
Cy pres elements
(1) when the specific charitable purpose indicate for the settlor is accomplished or becomes impracticable, the court may amend the trust as close as possible to the original one, rather than allow the trust to fail;
(2) the court must decide whether the settlor intended the trust to fail or would have wished the property devoted to a similar use
Modification by consent of an irrevocable trust (rule)
an irrevocable trust may be modified by the consent of all current and future beneficiaries if the modification will not impair a material purpose of the trust
Who may enforce (i.e. have standing to sue in the matter of) charitable trusts? (in the absence of statutes)
the atty general is the party authorized to bring suit to enforce charitable trusts
Testamentary capacity (rules)
(1) a testator has capacity to make a will if they are 18+ and of sound mind
(2) capacity is measures at execution
Testamentary capacity (elements)
Testator must have the ability to understand
(1) the nature of their act
(2) the nature and extent of their property
(3) the persons who are the natural objects of their bounty
Testamentary capacity evidential concerns
(1) there is a presumption that a testator had capacity; (2) the burden of proof is on the will contestant
Revocation of a will (rule) by subsequent instrument
(1) a will may be revoked in whole or in part by implication from the terms of a subsequent instrument; (2) to the extent that a second will makes an inconsistent disposition of property, the terms of the prior will are necessarily superseded or nullified
Can a conservator make a will for a conservatee?
Yes, if they have been so authorized by a court.
- this is typically only approved if it is to dispose of property that the conservatee had not disposed of or to make a change due to changed circumstances
Undue influence (rule)
the execution or revocation of a will is ineffective to the extent the execution was procured by undue influence
California undue influence
There is a statutory presumption of undue influence for any provision of an instrument making a donative transfer to certain persons, including:
(1) the person who drafted the instrument, as well as their relatives;
(2) a person who transcribed the instrument or caused it to be transcribed and who was in a fiduciary relationship with the transferor (such as a conservator or trustee) when the instrument was transcribed
Testamentary capacity of a conservatee (rule)
A conservatee who is mentally competent may make her own will, or may make, amend, or revoke a will made by a conservator
Testamentary capacity of a conservatee (evidentiary concerns)
(1) a conservatee does not necessarily lack testamentary capacity;
(2) while a conservatorship creates a presumption of lack of the required mental capacity, it is not conclusive and may be overcome by showing that the testator still met the specific standard for mental capacity
When will a CA court enforce a will executed in another state?
When it was valid
(1) in the place of execution
(2) in the testator’s domicile at the time of death; or
(3) under CA law
What does CA law require for a will to be valid?
(1) compliance with the statutory formalities
(2) testamentary capacity
(3) testamentary intent
What are the statutory formalities for a will in CA?
(1) in writing
(2) signed by T
(3) T must sign in the joint presence of at least two disinterested witnesses
(4) the witnesses must sign while T is still alive
(5) the witnesses must understand that the instrument is a will
What is the harmless error doctrine?
if a will is not executed in compliance with the statutory formalities, it may still be enforceable if it can be established by clear and convincing evidence that when the T signed he intended it to be his will
When is a holographic will enforceable in CA?
when the signature and material provisions are in the T’s handwriting
*a date is not required but is helpful if another will with inconsistent provisions exists.
What is testamentary intent?
T had the present intention at execution to make the instrument his will
What does a surviving spouse take if they are not provided for in the will or trust?
their share of CP and QCP + intestate share of SP
