CA Wills Flashcards
Capacity
CIFU
Capacity (presumption in favor of T, rebut by POE): AT THE time of execution the T
- Must be able to understand extent and nature of of his prop
- Must be able to understand the nature of the testamentary act
- Must understand the relations T has to living beneficiaries whose interest are affected by the will
Note: mental disorder NOT a conclusion, apply the test
No capacity: whole will is invalid = intestate succession unless prior valid will because will2 could not have revoked will1
Insane dilusion
CIFU
AT the time of execution T suffered from ID
- False belief
- Product of a sick mind
- No evidence to support the belief
- Delusion MUST have affected T’s will
NOTE: narrow issue than Capacity, IC raises a presumption but cure w/capacity test
Consequence: only that part (gift or whole will) affected is invalid, thus: residuary if any, or intestate
Fraud
CIFU
Representation of material fact, known to be false to wrongdoer, for the purpose of action or inaction and in fact induces the action or inaction
Fraud in execution (forgery of T’s signature or T is given doc puportedly non-testamentary): ENTIRE will is invalid thus prop passes by intestate succession unless prior validly will (will2 by fraud would not have revoked will1)
Fraud in inducement (Fraud affects CONTENTS of the will): Only part affected by fraud is invalid thus prop goes to residuary devisee, if none to heirs at law, or constructive trust
Undue Influence
CIFU
Definition: a will is invalid if obtained through duress, menace or UI that subjugates T’s free will
At the time of execution
Susceptibility (financial, psychological, etc): T has weakness as to have his free will subjugated
Opportunity: wrongdoer had access to T
Motive/Disposition to influence for the purpose of personal benefit
Causation is the result of of UI
If SOMEC then presumption may arise by:
- Confidential relationship between T and ben (CA recognizes CL relationship including friends)
- Ben participated in any way in procuring will or some significant activity related to execution of the will
Consequence: if will affected, will fails OR if part, then part fails: residuary devisee, intestacy
Statutory Presumption of UI
CIFU
Definition: a will is invalid if obtained through duress, menace or UI that subjugates T’s free will
CA law statutorily presumes that provision of an instrument making a donative transfer to the following persons is the product of UI:
- person who drated the instrument +drafter’s spouse or 3rd degree fam (conclusive)
- person in fiduciary relationship w/T (e.g. trustee, atty - rebuttable by CCE - Conclusive for: fiduciary’s spouse or 3rd degree fam)
- care custodian but only if instrument is executed during the period in which the custodian provided services to T, OR w/in 90 days before or after such period (rebuttable by CCE - Conclusive for: care custodian, shareholder, employee of firm’s spouse or 3rd degree fam)
Statutory presumption does NOT apply to:
- donative transfer to spouse of T, cohabitant of T, or blood relative w/in 4th degree of T
- instrument is drafted or transcribed by T’s spouse or blood relative w/in 4th degree of T
- instrument reviewed by IA
Consequence: if part of willl affected then transferee is deemed to have predeceased T w/o spouse OR issue thus gift lapses thus passes to residuary devisee then intestate succession
Mistake in Content
Wrong ben is named or wrong gift is made
- Mistake in omission: NOT added because Cts do not re-write wills
- Mistake in addition: Ct may strike out because Ct is excising part of the will
Mistake in Execution
Wrong doc is signed thus will is NOT probated
Exception: mutual wills, Ct may reform the wills
Mistake in Inducement
A gift is made OR not based on T’s erroneous belief
Exception (mistake on face of will): if mistake and what T would have done but for the mistake appear ON THE FACE of the will
Mistake in Description (Ambiguity)
No one or nothing fits the description OR two or more persons fit the description
CA: introduce parole evidence to explain then to resolve a latent AND resolve patent ambiguity to determine T’s intent
Dependent Relative Revocation
If testator revokes will (OR portion) upon mistaken assumption of law or fact that substantially identical will/codicil effectuates the intent, then the revocation of will1 is ineffective if testator would not have revoked the will1 but for the mistaken belief.
Key: ESSENTIALLY similar provisions
CA’s lost will provisions
A lost will OR ACCIDENTALLY destroyed (thus T did not intend to revoked) will can be probated w/adequate proof.
Proof: Copy of a will, or person w/personal knowledge testifies as to the terms of the will (e.g. atty who drafted the will)
Revival of revoked wills
If Will1 is revoked by Will2, thereafter will2 is revoked = both are revoked
UNLESS from circumstances of revocation (physical or by writing revocation) of will2 (w/extrinsic evidence), or T’s declaration, that T intended will1 to take effect as executed
Pretermitted/Omitted Children
A child born/adopted AFTER all testamentary instruments are exectued and is not provided for in any testamentary instrument
Takes intestate share T owned at death
Exception:
- T failed to provide for C in testamentary instrument AND intention appears from testamentary instrument
- T had one or more C and T transfered substantially all of T’s estate to parent of omitted child
- T provided for C outside the testamentary instrument w/intent that transfer was in lieu of any testamentary provision
Exception to exception: if child born/adopted BEFORE testamentary instrument may still take if the ONLY reason child is not provided for is because T’s mistakely thought child was dead/non-existent
Abatement to give C intestate share: abate prop not passing by will, THEN from all bens in proportion to the value of the gift received
Omitted Spouse
A surviving spouse who marries T AFTER testamentary instrument is executed and is not provided for in any testamentary instrument
Takes statutory share equal to spouse’s intestate share
Exception:
- T’s failure to provide for spouse in testamentary instrument AND intention appears from the testamentary instrument
- T provides for spouse outside the testamentary instrument w/intention that transfer was in lieu of any testamentary provision
- Waiver by spouse
Abatement to give spouse statutory share: abate prop not passing by will, THEN from all bens in proportion to the value of the gift received
Validate docs w/in or outside the will
Integration
Incorp by reference
Acts of indep siginificance
Integration
Additional docs which form part of the will
Prove Intent + Presence by physical connection or logical connection
Incorp by reference
- A writing/doc
- In existence AT THE TIME will is executed
- Language of the will clearly ID the writing/doc
- Language of the will manifests T’s intent (implied if 1-3)
Acts of indep significance
Docs (parole evidence) effectuated during T’s lifetime primarily for nontestamentary purposes are used for ID ben, ID gift in the will
Q: even w/o Will, will this fact have existed?
Attested Formal Will elements
Traditional formalities:
- Writing
- Signed by T, tp in T’s presence AND at direction of incapacitated T, or conservator
- Signing by T (or T’s A) in the presence (sight OR conscious: W’s hearing and W knows about the act) of two W both present at the same time
CA: W do not need to sign in the presence of each other, nor in the presence of T
- Signing by W during T’s lifetime
- W understand the instrument is T’s will
CA: T does not need to declare “this is my will” to W
CA: if T dies after 2009 apply CC std for 3,4,5 (cannot be used for 1,2)
CA: if T dies prior 2009 and W signed before T and no fraud issues, then will is valid under CA’s substantial compliance doctrine
Holographic Will
- Singed by T anywhere in the will
- Material provision of will MUST be in T’s handwriting
Note: extrinsic evidence (e.g. T told others list is his will) used to prove T’s intent (e.g. if T writes list of names + asset T owns)
- Dates NOT required but on analysis invalidate to extent of inconsistency of undated HW
IW
Note: need TWO disinterested W
A IW is a W beneficiary under the will
Will is NOT invalidated because of IW, BUT for IW’s taking a rebuttable presumption that W procured the device by duress, menace, fraud or UI arises.
BOP: CCE
If IW cannot rebut, IW is restricted to intestate share
Codicil
A testamentary instrument executed w/in CA probate code which modifies amends or revokes a will.
Codicil republishes a will
Codicil is ITSELF a testamentary instrument (for pretermission use this but do not mention republication)
Revocation of Codicil
If T executes W then codicil then revokes codicil: rebutable presumption that ONLY codicil is revoked
If T executes W then codicil then revokes W: rebutable presumption that T intended to revoke W AND codicil
Revocation by physical act
- Will is destroyed (cancelled: lining/crossing out, obliterated: erasing)
- Simultaneous intent to revoke
- By T or in T’s presence at his direction
Note: cancellation invalidates gift but DRR saves it ONLY if gift increased because T’s intent is on the face of the will
Note: cancellation (writing Null and Void, EVEN w/o signature) is stil a valid cancellation
Mutilated Will
If W is found mutilated at T’s death + last seen in T’s possession there is a rebutable presumption that T mutiliated w/intent to revoke
Revocation by writing
Expressed: if will2 expressly states
Implied: if will2 totatlly disposes T’s estate
Ademption of specific and general
ONLY specific gifts adeem by extinction
ONLY general gifts adeem by satisfaction
Ademption by extinction
Determine if itent of T was for a specific vs general gift, then if specific determin if intent was for gift to fail
Ademption by satisfaction
T gives the beneficiary an intervivos down payment on a device.
Established by:
- Provided for in Will
- T declares in writing
- Ben declares in writing
- Prop given is the same prop that is the subject of a specific gift to ben
Note:
Ademption deals w/testacy
Advancement deals w/intestacy
Advancement
Intestate gives an intevivos down payment to an heir apparent
Esbalished by:
- Intestate declares in writing
- Heir declares in writing
Note:
Ademption deals w/testacy
Advancement deals w/intestacy
K to make OR not make will
- Material provision are in the testamentary instrument
OR
- Express reference to K in the testamentary instrument
OR
- Writing by T evidencing a K
OR
- CCE of a K between T and promisee enforceable by equity
OR
- CCE of a K between T and Other for the benefit of claimant
Cause of action accrues: Cause of action accrues when decedent dies
Remedies: damages, specific performance, constructive trust
Mutual Wills
Separate wills of two or more people which are reciprocal
Note: Execution of a mutual will does NOT create a presumption to not revoke or make a will
CP
All prop acquired during marriage while domiciled in CA that is not SP
Quasi-CP
All prop (personal or real) situated in CA acquired by decedent while domiciled outside of CA that would have been CP if decedent had been domiciled in CA at the time of acquisition
Treated as SP before decedent’s death (thus surviving spouse cannot dispose of quasiCP while acquiring spouse is alive), treated as CP after death
SP
Prop acquired before marriage AND during marriage by gift, bequest, devise, and descent together w/rents, issues, and profits thereof
Per Capita/Representation
If issue take by intestacy OR will provides for issue w/o specifying manner then issue of same degree take per capita w/right of representation
Strict per stirpes
If will distributes “per stirpes” or “by right of rep” or “representation” = strict per stirpes: distribution at first level of generation
Adopted Children
AC or C born out of wedlock is treated the same as a natural C of the decedent/adopting parent
AC inherits through adoptive parents and inheritance rights to natural parents are cut off. Except: spouse of one natural parent adopts OR after one natural parent dies
Lapse and anti-lapse
Lapse
If beneficiary is required to survive T, and ben predeceases then gift lapses BUT ONLY if anti-lapse does NOT apply
Anti-lapse
ONLY if devisee who predeceased T is:
- kindred (blood relative) of T
- kindred (blood relative) of surviving spouse
- kindred (blood relative) of deceased spouse
- kindred (blood relative) of former spouse
AND devisee leaves issue
NOTE: devisee cannot be spouse
Simultaneous Death
(Intestate only) If T and heir die and it cannot be established by CCE that heir survivied by 120hrs then it’s deemed heir predeceased and estate is distributed per capita by right of survivorship
(Testate) If T and devisee die and it cannot be established by CCE that devisee survivied then it’s deemed devisee predeceased T and gift passes either through lapse or anti-lapse
(Testate) If T and spouse die (or A and B are JT) and it cannot be established by CCE that one spouse survived the other AND title of prop depends upon priority of death, then prop of each will be treated as if one survived the other
Abatement
Process by which certain gifts are decreased to pay share of: Omitted Spouse, and Omitted/pretermitted C
Abatement to give C intestate share or statutory share to spouse: abate prop not passing by will, THEN from all bens in proportion to the value of the gift received
Order to pay off GENERAL debts
- Intestate prop
- Residuary gifts
- General gifts to non-relatives
- Gen gifts to relatives
- Specific to non-relatives
- Specific to relatives
Exoneration
Devisee take specific gifts (e.g. RP) subject to encumbrances (e.g. mortgage), unless T’s will states that specific gift is to be exonerated to pay off the encumbering debt.
Does not affect other specific gifts to abate unless contrary intent is in the will
Slayer
If S intentionally and feloneously kills decedent, S is treated as having died intestate before T (anti-lapse does NOT apply)
Not part of the estate
bank acct (Jt w RS)
IRA (beneficiary designation)
LI (beneficiary designation) because they are based on the K
ERISA
Regardless of title (e.g. POD, etc) spouse can assert right to CP share even if non-contributing to plan or married after plan is created
Exception: retirement plan belonging to testator and spouse waives (Not favored in Ct)
Joint Accts or Survivor Accts
Title controls BUT if extrinsic evidence is admissible to show T’s intent NOT to make a gift but rather a convenience for paying T’s bills
