Wills & Trusts Flashcards
(49 cards)
Will Execution
1) Will must be signed by T or someone at T’s discretion
2) Ws, at same time, must witness T’s signature
2a) Invalid witnessing requirement can be overcome with clear and convincing evidence that T intended this to be the Will
Holographic Will
Don’t need Ws if T’s signature and all material positions are in T’s handwriting
Undue Influence - Common Law Presumption
1) Bene is in a confidential relationship to T;
2) Bene participates in any way in procuring the gift; and
3) The gift is an unnatural bequest that favors the bene
Undue Influence - Statutory
Instrument prepared by fiduciary who takes gift
Undue Influence - Standard
1) There was influence exerted on T;
2) The effect of the influence was to overpower the free will and mind of T; and
3) The product of the influence was a will which wouldn’t otherwise have been exercised but for the influence
Insane Delusion
But for the insane delusion the bequest wouldn’t have been made
Fraud
In the Execution - must defraud T as to the nature of what T is signing
In the Inducement - false representations made to get T to give a gift in one way and not another
Mistake
In the character of the document
In the Inducement - mistake and alternative disposition must appear on the face of the instrument (but CA Sup. Ct. case)
Revocation
Can revoke in three ways:
1) By subsequent physical instrument;
2) By physical act; or
3) By operation of law
Revival of a Revoked Will
Will #2 revokes Will #1; Will #2 is revoked by physical act; and contemporaneous or subsequent declaration by T showing intent to revive Will #1
Dependent Relative Revocation
T revokes part or all of a will based on a mistake of fact or law
If revocation is by physical act, extrinsic evidence of mistake or intent is allowed
If revocation is by subsequent will, mistake must appear on the face of the will
Codicils
To the extent the will isn’t changed by the codicil, it’s deemed to speak as of the date of the codicil, so the unaltered part of the will is republished by the codicil
Integration
The will consists of all papers or writings actually present at the time of execution and that T intended to constitute in the will
Presence and intent are presumed when the papers are physically connected or the provisions run from one page to the next
Incorporation by Reference
1) The incorporated writing is in existence as of the date of execution of the will;
2) The will shows T’s intent to incorporate the writing; and
3) The writing is sufficiently described in the will
Acts of Independent Significance
Non-testamentary acts of T used to resolve ambiguity on the face of the will
Specific Legacy
Gift of a particular item of property distinct from all other object in T’s estate
General Legacy
Gift of general economic benefit
Increase/Accretion
The majority rule is that if the value of a specific gift increases, the increase goes to the bene of the gift
Ademption
Occurs when the specific gift is no longer there when T dies
Bene isn’t entitled to the specific gift upon T’s death
Ademption by Extinction
When the specific gift is no longer owned by T at the time of T’s death
Ademption by Satisfaction
When T gives the bene a substitute gift during T’s lifetime
Lapse & Anti-Lapse
If bene predeceases T, the gift lapses and falls into residue unless anti-lapse applies
Anti-lapse applies if the deceased bene 1) is kindred of T; and 2) leaves surviving issue
Simultaneous Death
Simultaneous death if bene doesn’t survive decedent by 120 hours
Bene is deemed to predecease T
If all benes predecease T, all are deemed to survive the other so estate is split among their lines
If spouse dies simultaneously, 1/2 to each person’s estate
If joint tenant dies simultaneously, pro rata share to each JT’s estate
Intestate Succession
Spouse receives community property and:
1) No kid/parent/issue - spouse gets 100% of separate property
2) One kid/parent/issue - spouse gets 1/2
3) More than one kid/parent/issue - spouse gets 1/3
Lineal descendants take per capita by right of representation
