Bar Exam- Tests Flashcards
Mental Capacity Test
Testator must be capable of knowing and understanding in a general way
- The nature and extent of her property
- The natural objects of her affection/bounty (children, etc)
- That she is making a will
- Understands the first three at the same time
- (Testator must also be 18yrs of age)
Undue influence exists…
UI exists if the influence exerted over the donor overcame the donor’s free will and caused the donor to make a donative transfer that the donor would not otherwise have made.
Only the parts affected by Undue Influence are stricken from a will. It does not invalidate the whole will.
Undue Influence Elements
- The donor was susceptible to undue influence
* Factors relevant: young, old, weak, trusting. Look at the nature of the testator - The alleged wrongdoer had an opportunity to exert undue influence
* Simple to show this element - The alleged wrongdoer had a disposition to exert undue influence; and
* Was the D willing to do something improper? - There was a result appearing to be the effect of undue influence
* Result is unnatural. Based on empirical evidence of what testators have historically done
In California, the intestate shares of descendants are distributed…
…per capita with representation;
- i.e., the 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.
Private Express Trust
Definition for Essays
- A fiduciary relationship with respect to property
- whereby one person, the trustee, holds legal title for the benefit of another, the beneficiary; and
- which arises out of a manifestation of intent to create it for a legal purpose.
Charitable trust definition
To create a charitable trust you need a:
- (i) manifestation of trust intent; which can be done
- (ii) at the testator’s death by will or
- (iii) during settlor’s lifetime by declaration of trust or by transfer in trust
- (iv) of a presently existing interest in property that can be transferred
- (v) for a legal charitable purpose.
Totten Trust
definition
A Totten trust is also referred to as tentative bank account trust, whereby the named beneficiary takes whatever is left in the account at death of the owner of the account.
- The depositor/trustee owns the account during the depositor’s lifetime and owes the named beneficiary no fiduciary duties whatsoever.
- It really, therefore, is just a will substitute.
- It is more accurate to call it a Totten account.
- A Totten trust or Totten account is always a type of savings account with a bank or other financial institution.
Spendthrift trust
definition
“No beneficiary of this trust shall be allowed to voluntarily transfer his right to future payments, and no creditor shall be allowed to attach any beneficiary’s right to future payments.”
Support trust
definition
Trustee is required to use only so much of the income or principal as is necessary for the B’s health, support, maintenance, or education.
Discretionary trust
in general
In a discretionary trust, the trustee is given sole and absolute discretion in determining how much to pay the beneficiary, if anything, and when to pay the beneficiary, if ever.
Resulting Trust
A resulting trust is an implied in fact trust and is based upon the presumed intent of the parties.
If a resulting trust is decreed by the court, the resulting trustee will transfer the property to the settlor if the settlor is alive, and if not, to the settlor’s estate, i.e. to the residuary devisees if any, and if none, to the intestate takers (the heirs).
Has a valid trust been created?
It requires….
- property
- a trustee with duties
- a definite beneficiary
- manifestation of intent to create trust by a settlor with capacity
- a valid trust purpose
