Wills Trust Flashcards
(36 cards)
Valid Will Formation
A testator creates a valid formal will when there is
(1) a testator with capacity,
(2) present testamentary intent
(3) to sign
(4) a writing
(5) in the joint presences of two witnesses who understand the instrument is a will
(6) before the T dies the witness sign at some point
Testator Capacity
**A testator has capacity when she is **
(1) at least 18 years old,
(2) understands the extent of her property,
(3) the testator knows the natural objects of her bounty(i.e., who will receive her property), and
(4) knows the nature of her act.
**Effect of Incapacity **
If a testator lacks capacity, the entire will is invalidand the property will pass via intestacy. If a testator had a valid, prior will that was purportedly revoked by a second will for which the testator lacked capacity, the second will is ineffective in revoking the first will and the first will controls
Present Testamentary Intent
A testator has testamentary intent when she has the particular intent that the instrument that she is executing be her will
Lack of Intent
A court may find a testator lacked the requisite intentif the testator (1) lacked capacity, (2) suffered from an insane delusion, (3) was defrauded, (4) was subject to undue influence, or (5) mistake.
Interested Witness
Substantial Compliance Doctrine
Conservator
Interested Witness
If a witness has an interest in the will property (i.e.the witness will take under the will), a court will presume the witness procured the devise by fraud, duress, or undue influence.
Harmless Error Doctrine
If a will was not properly witnessed, a court will treat the will as duly formed when the proponent of the will establishes, by clear and convincing evidence, that at the time the testator signed the will, she intended the document to constitute her will.
A conservator may make and sign a will for the conservatee if the conservatee has been so authorized by the court.
valid holographic will
A testator creates a valid holographic will when she
(1) intends the document be a will,
(2) has capacity,
(3) handwrites the material provisions including the gifts and beneficiaries, and
(4) signs the document. There is no requirement for witnesses.
Fraud
**Fraud occurs when there is (1) a representation (2) of material fact (3) known to be false by the wrongdoer (4) for the purpose of inducing action or inaction which (5) induces the desired action or inaction. **
Inducement = when the wrongdoer’s misrepresentations affect the contents of a testator’s will. When there is fraud in the inducement, the affected part of the will is invalid and a court may give the property to residuary devisees, to heirs at law by intestacy if there are no residuary devisees, or create a constructive trust.
**Execution **= when a testator does not intend the document to be her will. A court will invalidate the entire will if there was fraud in the execution and the property passes by intestacy unless there was a validly executed prior will.
**Prevention **= when a testator does not revoke her will due to someone lying to her. A court will not probate the will and the property will go to the heirs
Undue Influence
There is undue influence when a testator’s free agency has been overcome and can be established by (1) prima facie case, (2) the case law presumption, and (3) statutory presumption. The consequence of undue influence is the affected part of the will is invalidated and the affected part goes to residuary devisees, heirs at intestacy, or into a constructive trust, whichever gets the best result.
5 bloody relatives live with me lowers my FICO score I need it to SOAR so I can buy a CAR and Eat corn on the COB
Prima Facie
1) T Susceptible to influence = exists when the testator has a weakness such that he is able to have his free will subjugated psychologically, financially, physically, or through some other way
2) Oppurtunity and Acess to exert influence
3) wrongdoer actively participated
4) the will provisions create an unnatural result where the Wrongdoer took a devise but is not someone who would ordinarily be expected to receive a devise.
**Case Law Presumption **
1) Confidential relationship exists between the testator and the beneficiary
2) Beneficiary actively participated in procuring, drafting, or executing the will
3) the will provisions create an unnatural result where the Wrongdoer took a devise but is not someone who would ordinarily be expected to receive a devise.
California law: excessive persuasion + causing another to act or refrain + overcoming their free will + but for results in inequity
California Statutory Presumption
California presumes that when part of the instrument makes a donative gift to the following types of people there is undue influence, which can be rebutted with CCE =
- drafter of instrument, fiduciary duty, care custodian + 90 days after,
- co-habitant, relative, or employee of any of the above
- UNLESS less $5k, blood relative, live with the person [rebut with CCE]
Mistake
Content = occurs when the wrong beneficiary or gift is named. When the testator omitted someone, there is no remedy. When the testator mistakenly added someone, the court may strike out the accidentally included words.
**Execution **= when the testator signs the wrong document. If the testator mistakenly signs his will believing it’s a non-testamentary instrument, the will is invalid. If a testator signs the wrong will because there are reciprocal or mutualwills (e.g., spouses both have wills and accidentally sign each other’s), the court may reform the will
**Inducement **= when a particular gift is made or omitted based on testator’s erroneous belief. Generally, there is no relief unless both the mistake and what the testator would have done but for the mistake appear on the face of the will
**Description **= parol evidence is permitted for both latent and patent defects to determine the testator’s intent.
Dependent Relative Revocation
DRR applies when the testator would not have revoked his previous will but for the mistaken belief that his subsequent will would be valid he wouldn’t have revoked the previous will. Courts will apply DRR if it comes closer to what the testator tried but failed to do than would an intestate distribution. The more similar the provisions of the 2 wills, the more likely the court will apply DRR.
Pretermitted
Omitted
Abatement
Exception: Intentionally omitted, intent to provide outside the will in lieu of will, T had one or more kids and left substantially all the estate to the parent of the omitted child, spouse waived in valid agreement
**Omitted child **= If a decedent fails to provide for their child or adopted child after they execute their testamentary will or trust, upon their death it will become effective and the omitted child will receive their intestte share of the decedents property. This rule extends to children the decendent believed to be dead or was unaware of the birth of the child and they will take their intestate share of the estate, which includes assets in a testator’s inter-vivos trust.
**Omitted Spouse **= If a spouse is omitted from a will, the omitted spouse is still entitled to their intestate share unless: (1) the testator intentionally omitted the spouse and made that intent apparent in the will; (2) the testator gave the surviving spouse property outside the will in lieu of property delivered through the will; or (3) the surviving spouse validly waived their share through a valid written agreement, such as a pre-marital agreement.
Abatement = When a mistake is made regarding a living child, any gift from a testamentary instrument is abated to the extent necessary for the living child to take his intestate share. Then, trust assets are distributed pursuant to the terms of the will or trust.
revoke a will
A testator may revoke a will at any time prior to death. A testator may revoke a will by (1) subsequent instrument (2) physical act, or (3) by operation of law
A subsequent instrument may revoke a prior will expressly or by inconsistency. A testamentary instrument that does not contain a revocation clause or does not invalidate the other dispositions of the will by consistency is a codicil and modifies the disposition of only the property mentioned therein.
Physical act = A testator or a person acting in the testator’s presence and at the testator’s direction revokes a will by physical act by burning it, tearing it, obliterating it, or destroying it, some material part with the intent and for the purpose of revoking it.
Operation of law = A will may be revoked by operation of law by (1) subsequent marriage, (2) birth or adoption of children, or (3) dissolution or annulment of marriage. A will is partially revoked by subsequent marriage whereby gifts are abated to the extent necessary to make up the spouse’s intestate share. A will is partially revoked by birth or adoption of children whereby gifts are abated to make up the share for the pretermitted child. A will is partially revoked by dissolution or annulment whereby all provisions in favor of the former spouse except where the will left everything to the former spouse.
Presumptions
Unfound Will = If the testator was competent until they died, and (1) their will was last known to be in the testator’s possession, and (2) neither the will nor a duplicate can now be found, the it is presumed that the testator destroyed the will with the intent to revoke it.
o Non-Revocation = will found in normal location + no suspicious circumstances around it
o Residuary Clause = indicated intent not to die intestate
Revival
- If the first will is revoked by a subsequent instrument and then later the subsequent instrument itself is revoked by a physical act or another subsequent instrument, then the first will can be revived IF that was the testators intent.
- A will may be revived by re-execution if the testator acknowleges her signature or a will AND witnesses attest to it.
- A will may be revived by publication of a subsequent Holographic codicil, but if the will was revoked by physical destruction it can NOT be republished. The holographic codicil MUST either meet the same formalities of an attested will or as a holographic Will.
Abatement
Ademption
Ademption by Satisfaction
Abatement = when a testamentary gift is reduced because the estate’s assets are not sufficient to satisfy all of the estate’s debts and satisfy all bequests and devises.
Ademption = A testator may revoke a will by effectuating a change in the property holdings.
Specific = gift of a specific item of property identifiable and distinguishable from the rest of the testator’s estate. A testator revokes by specific devise when the testator intends the new beneficiary of the property take the particular property and nothing else (real property).Traditionally, a specific devise could only be given effect if the property which forms the subject of the gift exists as part of the probate estate. However, ademption does not occur if the change in the testator’s property holdings is one of form and not of substance.
**General **= A testator revokes by general devise when she makes a gift payable out of general assets of the estate. (e.g.,25 shares of Apple stock)
**Demonstrative **= A testator revokes by demonstrative devise when she leaves a general devise from specific property.
Residuary = a gift of the property not disposed of in the will
**Ademption by Satisfaction **= if the will provides for deductions of gifts made while the testator was alive, if both the testator and the beneficiary declare in writing that the gift has been satisfied, or the property is given to the beneficiary during their lifetime
Lapse
Anti- Lapse
- A gift lapses if the beneficiary dies or no longer exists before the testator dies.
- California anti-lapse statutes save the gift if the predeceasing beneficiary (1) was a blood relative of the testator (or blood relative of surviving, deceased, or former spouse), and (2) left descendants who survived the testator.
- Otherwise the failed gift goes to the residuary of the estate, but if none has been named then the gift will pass through intestate succession.
Components of a Will
Integration = A will can be written on more than 1 paper. A will can consist of ALL the papers that were actually present at the tiem of execution that the testator intended to be apart of her will.
-A presumption of intent can be shown by physical attachment of the document to the will or a showing that the components of a will are internally consistent with the additional documents
Will Alteration = Alterations made on the face of the will, including strikeouts, interlineation, or deletions, after a will,is signed and attested are ineffective to change the will unless the will is re-executed with the proper formalities or the changes qualify as a holographic codicil.
**Codicil **= A codicil modifies a previously executed will and must itself be executed with the same formalities. When a testator executes a codicil, the will is treated as having been executed on the same day as the codicil.
Incorporation by Reference = Courts will infer that a document that is not integrated is a document that is incorporated by reference making the document become apart of the will if (1) the document existed at the time the will was executed, (2) the document is sufficiently described in the will, (3) the document provides satisfactory proof that the proffered document is the document described in the will, and (4) the testator intended to incorporate the document into the will.
**Act or Event of Independent Significance **= A will may dispose of property by reference to acts and events, even if in the future and unattested, if they have significance apart from their effect on the will itself.
Ambiguities (patent or latent) = clarified with extrinsic evidence, but not to fill in the gaps
Writing Disposing of Limited Tangible Personal Property
A writing, regardless of incorporation or facts of independent significance, may be admitted to probate if (1) writing is referred to in the will, dated, and assigned or handwritten by the testator or extrinsic evidence otherwise establishes testator’s testamentary intent, (2) the writing describes the items and recipients with reasonable certainty, (3) executed before or after the will, and (4) directs the disposition of tangible personal property (EXCLUDING cash and property used primarily in a trade or business) valued, at the time of the testator’s death, at nor more than $5,000 per items and not more than $25,000 in the aggregate.
CONTESTING A WILL
- Contracts Relating to Wills
A will contest challenges the validity of the will. Grounds for contesting are defective execution, lack of testamentary intent, revocation, incapacity, undue influence, fraud, or mistake.
Contracts Relating to Wills
- testators coordinating together their testamentary efforts.
- Must prove contents of the contract: a provision in the will that states material provisions in the K, express reference in the will + EE, writing signed by decedent, CCE showing agreement + enforceable in equity
- NO Presumption of contract by having joint or mutual wills
Adopted
Step Kids
Foster Kids
Bastards
Adopted children are treated as a natural child of the adopting parent and severs the relationship between the child and his or her natural parents. However, the relationship is not severed between the child and his or her natural parentswhen the child is adopted by the spouse of the natural parent.
Stepchildren and foster children are treated as an adopted child if (1) the relationship began during the child’s minority, (2) continued throughout the parties’ lifetimes, and (3) it is established by clear and convincing evidence that the stepparent or foster parent would have adopted but for some legal barrier.
**Non-Marital Kids **= Marital status of parents is irrelevant; rather, a court will focus on whethera parent-child relationship existed, irrespective of marital status.
Will Distribution Order
Per Capita
Per Stirpes
**Property is distributed in the following order of priority: (1) issue, (2) parents, (3) issue of parents, (4) grandparents, and (5) issue of grandparents. **
In California, if the decedent dies without a surviving spouse or domestic partner, then intestate distribution is first to issue in any generation
**Per Capita **= In a per capita jurisdiction, whenever issue take by intestacy, or if a will or trust provides for issue to take without specifying the manner, they take per capita, equally in their own right.
* Issue of the same degree take equally in their own right. = Closest generation with at least 1 living person gets equal shares then remaining shares are added up and equally distributed to the next level
* Issue of more remote degree take per capita by representation = Closest generation with at least 1 living person gets equal shares then decedents share goes to his kids, if he doesn’t have kids his share is re-distributed at the first level
Per Stirpes = In a per stirpes jurisdiction, distributions are made at the first level, even if everyone is dead, so long as they left issue. Then, the issue take as the predeceased ancestor would.
- equal distribution at the first level that has at least 1 living person OR deceased heirs who left at least 1 kid. Deceased person with no kids share is then re-distributed at the first level again.
**120 hour rule **= heir must live 5 days past T dying to get his intestate share, unless it will escheat
Advancements given to deduct from heir’s intestate share requires writing signed by 1 person
CP = Surviving Spouse gets ALL CP and QCP + either all, half, or 1/3 SP
- Half SP = 1 child, child’s issue, parents, or parents issue
- 1/3 SP = more than 1 kid or their issues
Valid Trust
Trust = trustor gives a trustee the right to hold legal title to property under a fiduciary duty to manage, invest, and safeguard the trust assets for the benefit of the designated beneficiary who holds equitable title
- Intent to create the trust= The settlors intent to create the trust may be manifested by written or spoken words or conduct that the trust take effect immediately. An inferance that a lack of intent is present with precatory words like “wish” or “hope,” but this can be overcome with EE that shows the intent.
- Res = There is res when there is identifiable property described with reasonable certainty NOT expectancy under will or illusory
- Valid Purpose = A trust purpose is valid when it is legal and not against public policy (alternative desire if expressed or term stricken)
- Named Trustee = A trust must have a trustee. A trustee is a person designated to administer the trust. If one is not named, the court may appoint a trustee.
- Identified Benficiary = someone who has an interest in the trust. A trust must have a beneficiary to enforce the trust
The Trustee must have duties to perform, and
the same person CANNOT be the sole trustee and sole beneficiary. Although a trust must have a named trustee, the trust will NOT fail solely because that person refuses to act as trustee, dies, is removed, or resigns. In such instance, the court will appoint a new trustee.
Challenge the validity: Undue Influence, Fraud, Duress
A person who participates in the participation of a breach of a trust purpose is liable for any resulting losses.
Charitable Trust
Charitable Trust = A charitable trust confers a substantial benefit upon society at large. A charitable trust must have a stated charitable purpose. RAP does not apply.
(1) manifestation of trust intent,
(2) done at testator’s death by will or during settlor’s life by declaration of trust or by transfer in trust of a presently existing interest in property that can be transferred for a legal charitable purpose.
** Cy Pres**
The Cy Pres doctrine applies when the settlor creates a trust that is impossible to carry out and the court can either (a) create a resulting trust or (b) apply cy pres. Under the doctrine of cy pres, a court finds that the settlor had a general charitable intent and modifies the mechanism to carry out the settlor’s intent. If a specific intent is found, it will create a resulting trust.
** Court Modification**
A court may modify a charitable trust through the cy pres power or when the settlor does not foresee circumstances and a deviation from the original trust terms is needed to preserve the trust.
Look for issues with a small group of people as it may be either a private express trust or a charitable trust
Honorary Trust
An honorary trust provides benefits for something other than a human or charity and are typically invalid unless its to care for a pet or a cemetery plot. Once the pet dies, a resulting trust is applied.
A trustee need not carry out the settlor’s goal but may
Honorary trusts almost always violate RAP given the lack of an identifiable life in being
Spendthrift Trust
A spendthrift trust restricts a beneficiary from transferring her right to future payments of income or principal and bars creditors from attaching the beneficiary’s right to future payment.
**A settlor may create a spendthrift trust for herself. **
* If involuntary, a majority of jurisdictions recognize the trust as valid but any spendthrift provisions invalid.
* If voluntary, a majority of jurisdictions will ignore the spendthrift provisions,and a minority will enforce those provisions.
* if the restraint on involuntary alienation is deemed invalid, then the interests of an insolvent beneficiary could be reached to satisfy claims by creditors.
Creditor can reach: necessaries, spousal/child support, government creditors, and if trustor is the beneficiary
*Spendthrift Trusts DO NOT provide protection for mandatory distributions of trust property.
