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Wills and Trusts > CA Wills > Flashcards

CA Wills Flashcards

1
Q

Intent Issues: Case Law presumption of UI (Wills)

A

Other issues: Capacity, Insane Delusion, Fraud, UI

Undue Influence: duress, menace or other UI subjugates T’s free will AT THE TIME of execution

Types: Prima Facie UI, Case Law presumption of UI, Statutory presumption of UI

2) Case Law presumption: RCU
- Relationship: CA recognizes ALL CL confidential relations (atty-client, MD-patient, guardian-ward, clergy person-penatent, trustee-Ben) AND when one person reposes trust in another e.g. friend)
- Active Participation (Causation): wrongful act that gets the gift
- Unnatural result: wrongdoer takes a device and this person ordinarily would NOT be expected to take (e.g. T’s employee takes all and T’s family nothing)

Consequence: ONLY that part (gift or whole will) affected is invalid = affected part to 1) residuary, OR 2) if none, intestate succession, OR 3) Constructive trust (prevent fraud or unjust enrichment): deny probate, allow prop to go to residuary or heir THEN make devisee or heir a constructive trustee for INTENDED Ben

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2
Q

Dissolution of Marriage and Wills

A
  • Will is revoked by operation of law if: annulment, or final dissolution of marriage
  • Legal separation does NOT revoke will
  • Will is reinstated if Will is unchanged and T remarrries former spouse unless stated otherwise in Will
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3
Q

Strict per stirpes (Wills)

A

IF “per stirpes” or “by right of rep” or “representation” = apply strict per stirpes (distribution at first level of generation)

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4
Q

Intent Issues: Fraud (Wills)

A

Other issues: Capacity, Insane Delusion, Fraud, UI

Elements:

1) Representation of material fact
2) Known to be false by wrongdoer
3) For the purpose of action or inaction
4) In fact induces the action or inaction

Types:
- Fraud in execution: T does not intend doc to be will (e.g. forgery of T’s signature or T is given doc puportedly non-testamentary)
Consequence: ENTIRE will is invalid = intestate succession unless VALID prior will because Will2 (w/o capacity) could not have revoked Will1

  • Fraud in inducement: T intends docs to be will but CONTENTS are affected by misrep
    Consequence: ONLY that part (gift or whole will) affected is invalid = affected part to 1) residuary, OR 2) if none, intestate succession, OR 3) Constructive trust (prevent fraud or unjust enrichment): deny probate, allow prop to go to residuary or heir THEN make devisee or heir a constructive trustee for INTENDED Ben
  • Fraud in preventing from revoking: same as Fraud in the inducement
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5
Q

Validating docs related to Will

A
  • Integration:
  • Incorporation by reference
  • Acts of independent significance
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6
Q

Mistake re: children - Pretermission (Wills)

A
  • Pretermission: accidental omission

1) Pretermitted Child: execution of instrument then birth
- A child born/adopted AFTER ALL testamentary instruments are executed and not provided for in any testamentary instrument
Consequence: C takes intestate share of T’s estate (including inter-vivos Trust)
Abatement: abate/reduce prop not passing by will, THEN from all Bens in proportion to the value of the gift received

Exceptions: Pretermitted C does NOT take if

  • T INTENTIONALLY fails to provide for C in testamentary instrument AND intention appears from testamentary instrument (e.g. “I have no Cs but when I do Cs take nothing”)
  • T had one or more Cs and T transferred substantially all of T’s estate to parent of Cs
  • T provides for C outside the testamentary instrument w/intent that transfer is in lieu of any testamentary provision (e.g T buys annuity for C)
  • Nonpretermitted C (born/adopted BEFORE) also does NOT take
    Exception: (Toragano case)
  • C born/adopted before all testamentary instruments are executed and NOT provided for because the ONLY reason is that T mistakenly thought C was dead/not existent
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7
Q

Mistake in Content (Wills)

A

T makes wrong gift or names wrong Ben due to accidental omission or addition

  • CL no relief for accidental omission (Cts do not rewrite wills) BUT
  • CA: ANY mistake in content (omission or add), Ct may reform or rewrite will to conform to T’s intent ONLY if CCE (extrinsic evid allowed) establishes: 1) (explain) mistake of T’s intent in will, AND 2) (resolve) T’s actual intent at the time will was executed
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8
Q

Attested Will

A

Traditional formalities:
1. Writing (oral Wills are NOT recognized in CA)

  1. Signed by T, tp in T’s presence AND at direction of incapacitated T, or conservator
  2. 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: Ws do not need to sign in the presence of each other, nor in the presence of T, nor after T’s signature
    - CA: If Wit signed before T and no fraud issues, then will may be valid if it SUBSTANTIALLY complies with other elements
  3. Signing by W during T’s lifetime
  4. W understand the instrument is T’s will

– CA: Apply CCE to prove 3,4,5 (cannot be used for 1,2)

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9
Q

Separate Property (Wills)

A

1) Prop owned by either S before marriage
or
2) Prop acquired during marriage by Gift, Will, or Inheritance
or
3) Prop acquired during marriage w/the expenditure of SP (by tracing)
or
4) Rents, issue, and profits derived from SP

  • Character may be altered by:
    Agreement by the parties (prenup or postnup)
    Conduct of parties
    Form of title taken by the parties
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10
Q

Pour-Over Wills and Trust problem

A
  • Validate pour-over provision in Will by analyzing:
    1) Incorporation: may or may not work
    2) Acts of independent significance: works
    3) UTATA: pour-over provisions are valid even if trust is modified AFTER execution of Will
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11
Q

Intent Issues: Prima Facie Undue Influence (Wills)

A

Other issues: Capacity, Insane Delusion, Fraud, UI

Undue Influence: duress, menace or other UI subjugates T’s free will AT THE TIME of execution

Types: Prima Facie UI, Case Law presumption of UI, Statutory presumption of UI

1) Prima Facie Case: SOCU
- Susceptibility: T has weakness (ANY weakness: financial, psychological, physicial, etc) as to have his free will subjugated
- Opportunity: wrongdoer had access to T
- Active Participation (Causation): wrongful act that gets the gift
- Unnatural result: wrongdoer takes a device and this person ordinarily would NOT be expected to take (e.g. T’s employee takes all and T’s family nothing)

Consequence: ONLY that part (gift or whole will) affected is invalid = affected part to 1) residuary, OR 2) if none, intestate succession, OR 3) Constructive trust (prevent fraud or unjust enrichment): deny probate, allow prop to go to residuary or heir THEN make devisee or heir a constructive trustee for INTENDED Ben

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12
Q

Holographic Will

A

Elements:
1) Singed by T anywhere in the handwritten Will

2) Material provision MUST be in T’s handwriting
- Extrinsic evidence used to prove T’s intent (e.g. if T writes list of names + asset T owns, T told others list is his will)

  1. Dates NOT required but if conflicting Wills, invalidate to extent of inconsistency of undated holographic Will
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13
Q

Mistake in Validity of Subsequent Instrument DRR (Wills)

A
  • DRR allows Ct to disregard a revocation caused by T’s mistake
    Elements:
    1) T revokes Will1 (OR portion)
    2) Upon mistaken assumption of law or fact that SUBSTANTIALLY identical Will2/codicil effectuates T’s intent
    3) Then the revocation of Will1 is ineffective if testator would not have revoked the Will1 but-for the mistaken belief.
    4) Will1 is deemed conditional, dependent, and relative to Will2 effectuating T’s inten

Consequence: Will1 is not probated, Will2 is not probated because it’s invalid, then DRR saves Will1 to be probated

Note: if Will1 is destroyed apply CA’s lost Will provision
- Lost Will OR ACCIDENTALLY destroyed Will (T did not intend to revoked) can be probated w/adequate proof (copy of Will) or if at least ONE witness w/PK testifies to the terms of the Will (e.g atty who drafted the will

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14
Q

Revocation and Revival of Wills/codicils by subsequent written Will/codicil

A
  • If T executes Will1, then executes codicil, then T revokes codicil = rebutable presumption that T intended to revoke ONLY codicil
  • If T executes Will1, then executes codicil, then T revokes Will1 = rebutable presumption that T intended to revoke BOTH Will1 and codicil

Implied revocation:
- Will2 disposes of T’s complete estate = Will1 revoked

Revival
- If Will1 is revoked by Will2, and then Will2 is revoked = both are revoked UNLESS it is shown from circumstances (w/extrinsic evidence OR T’s specific oral dec) that T intended Will1 to take effect as executed

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15
Q

Lost Wills Provision

A
  • Lost Will OR ACCIDENTALLY destroyed Will (T did not intend to revoked) can be probated w/adequate proof (copy of Will) or if at least ONE witness w/PK testifies to the terms of the Will (e.g atty who drafted the will
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16
Q

Quasi-CP (Wills)

A
  • All prop (personal or real) situated in CA (Probate Ct has SMJ) 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 is QCP
  • All prop treated as SP BEFORE decedent’s death OR BEFORE divorce (thus surviving spouse cannot dispose of quasiCP while acquiring spouse is alive), treated as CP AFTER death
  • After divorce all prop is treated as QCP thus division equally by EITHER awarding similar asset in value OR order acquiring spouse to execute any conveyance necessary (because Pjx)
  • On Death of acquiring spouse, personal prop is treated as QCP, RealProp is divided or not divided according to other State law where Prop is located (non-CP state = SP and no division)
    Surviving spouse also may assert rights on QCP when T makes an illusory transfer to TP (T retains interest or control) and thus reclaim 1/2 of QCP
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17
Q

Interested Witness (Wills)

A

Note: Need TWO disinterested W for valid Will

IW: a W beneficiary under the will

  • Will is NOT invalidated because of IW, BUT unless TWO other Ws, a rebutable presumption arises that IW procured device by wrongdoing
  • IW must prove by CCE
  • If IW cannot rebut, IW is restricted to intestate share
  • IW does not apply to W taking as fiduciary (e.g trustee)
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18
Q

Community Property (Wills)

A

CA is a Comm Prop state. There is a Comm Property presumption that all assets acquired during marriage is presumptively CP
Other assets are classified as SP like:
1) Prop owned by either S before marriage
or
2) Prop acquired during marriage by Gift, Will, or Inheritance
or
3) Prop acquired during marriage w/the expenditure of SP (by tracing)
or
4) Rents, issue, and profits derived from SP

  • Character may be altered by:
    Agreement by the parties (prenup or postnup)
    Conduct of parties
    Form of title taken by the parties (Lucas case and anti-Lucas Statutes)
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19
Q

Ademption of Specific gifts vs general gifts

A
  • ONLY specific gifts adeem (fail) by extinction

- ONLY general gifts adeem (fail) by satisfaction

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20
Q

Exoneration of Debt and specific gifts (Wills)

A

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

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21
Q

Republication of Will by Codicil

A
  • Codicil republishes Will thus terms of Will are republished from date Codicil is executed
  • Republication can be applied to issues of: pour-over Wills, pertermission (alternatively: Codicil itself is a testamentary instrument)
22
Q

Mistake re: spouses - Pretermission (Wills)

A
  • Pretermission: accidental omission

1) Pretermitted Spouse: execution of instrument then marriage
- A surviving spouse married AFTER ALL testamentary instruments are executed and not provided for in any testamentary instrument
Consequence: W takes STATUTORY share of T’s estate (including inter-vivos Trust)
CP: T’s 1/2 + W’s 1/2 = 100
Quasi CP: T’s 1/2 + W’s 1/2 = 100
SP: If 1xC = T’s 1/2, or if 2 or more Cs = T’s 1/3
Abatement: abate/reduce prop not passing by will, THEN from all Bens in proportion to the value of the gift received

Exceptions: Pretermitted W does NOT take if
- T INTENTIONALLY fails to provide for W in testamentary instrument AND intention appears from testamentary instrument (e.g. “I’m not married but when I do W take nothing”)
- T provides for W outside the testamentary instrument w/intent that transfer is in lieu of any testamentary provision (e.g T buys annuity for W)
- Voluntary waiver by W: 1) writing + signed BEFORE or DURING marriage, 2) full disclosure by T of T’s finances, and 3) Independent counsel
BUT even if no full disclosure and no IC, waiver enforceable if W had or should had knowledge of T’s finances OR waiver was in fact fair unless waiver is unconscionable

23
Q

Abatement to pay off General Debts (Wills)

A
  • DO NOT apply order to abatement for omitted C/spouse
    1) Intestate prop
    2) Residuary gifts
    3) General gifts to non-relatives
    4) Gen gifts to relatives
    5) Specific to non-relatives
    6) Specific to relatives
24
Q

Codicil (Wills)

A

Codicil: modifies, amends, or revokes a Will

Codicil MUST also meet traditional formalities:
1. Writing (oral Wills are NOT recognized in CA)

  1. Signed by T, tp in T’s presence AND at direction of incapacitated T, or conservator
  2. 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: Ws do not need to sign in the presence of each other, nor in the presence of T, nor after T’s signature
    - CA: If Wit signed before T and no fraud issues, then will may be valid if it SUBSTANTIALLY complies with other elements
  3. Signing by W during T’s lifetime
  4. W understand the instrument is T’s will

– CA: Apply CCE to prove 3,4,5 (cannot be used for 1,2)

25
Q

Ademption by Extinction

A

Ademption (failure) by extinction: specific gift fails because T did not own prop at T’s death
- Analysis:
1) determine if T intended gift to be specific vs general
THEN
2) determine if T intended gift to fail when gift is sold/transferred etc

Note:
Ademption deals w/testacy
Advancement deals w/intestacy

26
Q

Issue taking Per Capita/Representation (Wills)

A

No Will OR Will does not specify: issue of same degree take per capita, then issue of more remote degree take per capita w/right of representation

27
Q

Intent Issues: Capacity (Wills)

A

Other issues: Capacity, Insane Delusion, Fraud, UI

Capacity (presumption in favor of T, rebut by POE): AT THE TIME of execution, the T

1) Of age 18+
2) . Must be able to understand extent and nature of of his prop
3) Must be able to understand the nature of the testamentary act
4) Must know the relations T has to living Bens whose interest are affected by the will (spouse, issue, parents, anyone else w/interest as a Ben)

Note: mental disorder NOT a conclusion, apply ALL elements to mental disorder

Consequence: ENTIRE will is invalid = intestate succession unless VALID prior will because Will2 (w/o capacity) could not have revoked Will1

28
Q

Testamentary Gifts of Community Property

A

When T attempts to dispose of more than 1/2 of CP or QCP in a will, it MUST be read as a whole or not at all:

1) Survivor spouse may accept gift in will in lieu of statutory share (taking under the Will)
OR
2) Renounce all benefits in Will and take ONLY S’ share of CP or QCP (taking against Will) (taking against Will)

29
Q

Conveyance of land: Lapse and anti-lapse (Wills)

A

Lapse:
If Ben is required to survive T, and Ben predeceases T: gift lapses and passes through residuary, if any, or intenstacy

CA Anti-lapse: apply to save the gift in Wills, revocable trusts, and class gifts BUT do NOT apply if Ben is REQUIRED to survive T
- ONLY if Ben devisee who predeceased T is (blood relative) kindred OF:

1) T
2) surviving spouse
3) deceased spouse
4) former spouse

AND Ben leaves issue

  • Ben devisee CANNOT be spouse
30
Q

ERISA (Wills)

A

Regardless of title (e.g. POD, etc) designation, spouse can assert right to CP share even if non-contributing to plan or married AFTER plan is created

Exception: Spouse waives rights to T’s retirement plan (Not favored in Ct)

31
Q

Validate docs re: Will by Integration

A

Integration: Intent + Physical presence
1) Intent: T must have intended doc to be part of will
AND
2) Presence: doc was physically present at the time of execution

  • Prove by physical connection among all pages of Will OR logical connection
32
Q

Validate docs re: Will by CA Probate Code 6132

A

Elements:

1) Written Doc ID in will
2) Doc clearly ID gifts and Bens
3) Doc is executed BEFORE or AFTER Will
4) Doc directs disposition of tangible personal prop

33
Q

Mutilated Wills

A
  • Will found mutilated when T died and last seen in T’s possession raises a rebutable presumption that T mutilated Will w/intent to revoke
34
Q

Simultaneous Death (Wills)

A
  • Intestate ONLY: T + heir die, MUST establish by CCE that heir survived T by 120hrs, otherwise heir is deemed predeceased T = distribute by intestate succession
  • Testate: If right of person is conditional on surviving T (e.g. prop passing by will, JT prop, life ins), devisee MUST establish by CCE that devisee survived by 1sec, otherwise devisee deemed predeceased T = gift passes through lapse or anti-lapse
  • Testate: T + spouse die (or A and B are JT) AND prop depends upon priority of death, MUST establish by CCE that spouse (or JT) survived, otherwise each treated as if one survived the other = distribute to each estate (residuary devisee, if any, heirs)
  • T (insured) + Ben: MUST establish by CCE otherwise Ben deemed to have predeceased: 1) look at alternative Ben in policy, if none 2) paid to insured’s estate (residuary devisee, if any, heirs)
35
Q

Intent Issues: Statutory presumption of UI (Wills)

A

Other issues: Capacity, Insane Delusion, Fraud, UI

Undue Influence: duress, menace or other UI subjugates T’s free will AT THE TIME of execution

Types: Prima Facie UI, Case Law presumption of UI, Statutory presumption of UI

3) Statutory Presumption of UI: CA law statutorily presumes that provision of an instrument making a donative transfer to the following persons is the product of UI:
- CONCLUSIVELY: Person who drafted the instrument + drafter’s spouse or drafter’s relative
- Rebutable by CCE: Person in fiduciary relationship w/T + Conclusively for fiduciary’s spouse or relative
- Rebutable by CCE: Care custodian BUT ONLY if instrument is executed during the period of services + 90 days before OR after such period + Conclusively for cc’s spouse or relative
- Statutory pres of UI does NOT apply to:
- - Transfer to spouse of T, or blood relative w/in 4th degree of T
- - Instrument drafted/transcribed by T’s spouse or blood relative w/in 4th degree of T
- - Instrument reviewed by IA

Consequences: transferee is deemed to have predeceased T w/o spouse OR issue thus gift lapses and goes to residuary then intestate succession

36
Q

Mistake in Description / Ambiguity (Wills)

A
  • No person or nothing fits the description OR two or more persons or things fit the description

Consequence:
- Distinguish between latent (hidden) and patent ambiguity then apply CA law: introduce parole evidence for ANY type of ambiguity to establish 1) (explain) mistake of T’s intent in will, AND 2) (resolve) T’s actual intent at the time will was executed

37
Q

Validate docs re: Will by Inc by reference

A

Incorporation by Reference:

1) Writing
2) Doc was in existence AT THE time Will was executed
3) Doc is clearly ID in Will
4) T intended to incorporate doc in Will
- Intent established by proving 1-3

38
Q

Adopted and Step-children Children (Wills)

A

Adopted Cs
- Take just as natural Cs

  • Adoption severs relationship w/natural parents
    Exception: adoption by spouse of one natural parent

Step-Cs
- Treated as adopted if:
1) Relationship began during C’s minority
AND
2) Continued through party’s lifetimes
AND
3) By CCE that stepparent would have adopted but for legal barrier (e.g. natural parent does not give consent)

39
Q

Validate docs re: Will by Act of Indep Significance

A

Acts of Independent Significance: use trustworthy parole evidence to fill in blanks in Will

  • Facts or docs executed during T’s lifetime primarily for nontestamentary purposes (e.g. membership to church, owning car, etc) are used to ID Ben, or ID gift in the will

Q: even w/o Will, will this fact have existed?

40
Q

Intestate succession w/o spouse

A

T’s

1) Issue
2) Parents
3) Issue of Parents
4) Grandparents
5) Issue of GP
6) Issue of predeceased spouse (step-children)
7) Next of Kin
8) Parents of predeceased spouse (in-laws)
9) Issue of in-laws
10) Escheats

41
Q

Ademption by Satisfaction

A

T gives the beneficiary an inter-vivos down payment on a device

Establish ademption (failure) by:

1) Provided for in Will
2) T declares in a writing
3) Ben declares in a writing
4) Prop given in inter-vivos gift is the SAME prop as prop ID in Will

Note:
Ademption deals w/testacy
Advancement deals w/intestacy

42
Q

K to make, or not make, a Will or devise

A

1) Material provision are in the testamentary instrument

OR

2) Express reference to K in the testamentary instrument (terms can be established by extrinsic evidence: oral or written)

OR

3) Writing signed by T evidencing a K

OR

4) CCE of a K between T and promisee or TP enforceable by equity (by estoppel)
- Cause of action accrues when decedent dies

Remedies: sue T’s estate for damages, specific performance, constructive trust

43
Q

Mistake in Execution (Wills)

A
  • T signs the wrong doc thus NOT probated because T did NOT have intent for doc to be a will
    E.g. T mistakenly signs will believing it is non-testamentary instrument (e.g. power of atty)
  • Exception for Reciprocal Wills: Ct may reform using extrinsic evidence to establish 1) (explain) mistake of T’s intent in will, AND 2) (resolve) T’s actual intent at the time will was executed
    E.g. T and W have reciprocal wills and both mistakenly sign other’s will
44
Q

Wills Analysis

A

Intent
Formation
Revocation
Distribution

45
Q

Joint Accts or Survivor Accts (Wills)

A

Title controls BUT extrinsic evidence IS admissible to show T’s intent NOT to make a gift but rather a convenience for paying T’s bills

  • For anything other than RealProp use tracing of funds to divide SP from CP
46
Q

Intent Issues: Insane Delusion (Wills)

A

Other issues: Capacity, Insane Delusion, Fraud, UI

Insane Delusion: AT THE TIME of execution, the T

1) Had a false belief
2) Product of a sick mind
3) No evidence to support the belief
4) 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 = affected part to residuary, if none, intestate succession

47
Q

Intestate succession w/spouse

A

For CP and QCP:
- W takes her 1/2 + T’s 1/2 = 100%

For SP and T has issue

  • W takes 1/2 and T’s one issue 1/2
  • W takes 1/3 and T’s two or more issue 2/3

For SP and T has NO issue but parents or issue of parents
- W takes 1/2 and T’s fam takes 1/2

48
Q

Revocation of Will by physical act

A

1) Will is destroyed (cancelled: lining/crossing out, obliterated: erasing)
2. Simultaneous intent to revoke (Act + Intent)
3. By T or by TP in T’s presence at T’s direction
- In a typed formal Will, cancellation (lining/crossing out) by interlineation invalidates gift but DRR saves it ONLY if gift increased because T’s intent is on the face of the will
- In a holographic Will, interlineation revokes gift AND makes a valid NEW disposition because in T’s own handwriting
- Cancellation (writing Null and Void, EVEN w/o signature) is still a cancellation
- Duplicate Wills: revocation of one duplicate original revokes other duplicate original

49
Q

Advancement (Wills)

A

T gives an heir apparent an inter-vivos down payment

Establish advancement by:

1) Intestate declares in a writing
2) Heir declares in a writing

Note:
Ademption deals w/testacy
Advancement deals w/intestacy

50
Q

Slayer rule (Wills)

A

If Slayer intentionally and feloneously kills decedent, S is treated as having died intestate before T (anti-lapse does NOT apply)

  • If T and S are co-tenants, the JT is severed (S does not lose S’s share interest)
  • S is Ben in life insurance and kills T: does not take
51
Q

Choice of Law (Wills)

A
  • Will is probated If Will complies w/formalities of
    1) CA law
    OR
    2) State where Will was executed
    OR
    3) State where T was domiciled when Will was executed
52
Q

Not part of Estate in Intestacy

A
  • Bank acct (Jt w/RS): also called Totten Trusts
  • IRA (beneficiary designation)
  • Life Insurance (beneficiary designation) because they are based on the K

Wills and Trusts (2 decks)

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