CALIFORNIA WILLS

Question 1

The subject of wills consists of 4 main concepts:

Answer 1

1. intent
2. formation
3. revocation
4. distribution

Question 2

There are 4 main issues within the concept of intent:

Answer 2

1. capacity
2. insane delusion
3. fraud
4. undue influence

Question 3

The capapcity to make a will is the ________ capacity recognized by law.

Answer 3

lowest

Question 4

To have capacity to make a will the testator must satisfy four elements:

Answer 4

1. must be at least 18
2. must be able to understand the extent of her
   property
3. must know the natural objects of her bounty
   • spouse or domestic partner
   • issue
   • parents
   • those whose interests are affected by the
   will.
4. must know the nature of her act
   • Must know she is executing a will
   • Does not have to know all legal technicalites
   of the will (e.g., no rule of perpetuities).

Question 5

If there is no capacity in forming the will, the ______________. Property, therefore, will pass by ________________.

Exception?

Answer 5

entire will is invalid; intestate succession

Exception: If T had a valid prior will that was purportedly revoked by the 2nd, the first instrument will be probated. If T didn’t have capacity for 2nd will, the first couldn’t have been revoked.

Question 6

Bar exam tip for capacity questions: Look for ___________ and _________, but make sure to still apply the _____________.

Answer 6

1. A T who has a conservator appointed
2. A T who is diagnosed with a mental disorder

Make sure to still apply the 4 prong test. Because T was diagnosed w/ a mental disorder, this is relevant to establish that at the time of execution, T didn’t know the natural objects of her bounty because …

Question 7

A will can be attacked if _____________ the T was suffering from an insane delusion.

Answer 7

at the time of execution

Question 8

Four elements needed to establish T was suffering from an insane delusion:

Answer 8

1. T had a false belief
2. that false belief was the product of a sick mind
3. there is not even a scintilla of evidence to
   support the belief
4. delusion must have affected T’s will.

Question 9

What are the consequences of finding that T was suffering from an insane delusion at the time of execution?

Answer 9

1. Only that part of the will that was affected by the delusion is invalid.
2. As to that part, it will go to the residuary devisee, or if none, or if the residue itself was infected by the delusion, by intestate succession.

Question 10

What is the residuary gift?

Answer 10

Part of the estate not otherwise expressly disposed of in the will.

E.g.: will reads, “Blackacre to A, Whiteacre to B, and the residue to C.” C is the residuary devisee. C gets the balance of testator’s estate. C’s gift may be worth $1 or $1 billion.

Question 11

Distinguish lack of capacity from delusion:

Answer 11

• No capacity is very severe problem because it goes to T’s entire essence (not knowing one’s spouse)
• Delusion, however, T has a problem, but it’s a narrow one and T is otherwise perfectly normal. (beleiving one’s spouse is unfaithful).

Question 12

What are the 5 elements to fraud?

Answer 12

1. Must be a representation
2. of material fact
3. known to be false by the wrongdoer
4. for the purpose of inducing action or inaction; and
5. in fact induces the action or inaction desired.

Question 13

What are the 3 types of fraud tested on the bar exam?

Answer 13

1. fraud in the execution
2. fraud in the inducement
3. fraud in preventing testator from revoking the will.

Question 14

What is the definition for fraud in the execution?

Answer 14

1. someone forges T’s signature to a will, or
2. T is given a doc. to sign that purportedly is non-testamentary in nature, but in fact it is, and T signs it.
   • E.g. T is given a document to sign,
   purportedly a power of attorney, but in fact it
   is a will, and T signs it.

Question 15

What is the consequence of finding fraud in the execution?

Answer 15

1. the entire will is invalid
2. the property passes by intestate succession, unless there is a prior will that was validly executed
3. If there was a prior will that was validly executed, the instant will, as a consequence of the fraud, could in no way have revoked the prior valid will.

Question 16

Define fraud in the inducement:

Answer 16

The wrongdoer’s represenations affect the contents of T’s will.

E.g.: Son learns that T is going to soon execute a will leaving all of her property to a charity. The son approaches T and states, “Did you hear the FBI is investigating that charity for cheating elderly out of their savings?” The son knows that this is a lie, and is doing so b/c he wants T to leaving nothing to charity and everything to the son and this happens. Son gets everything an dcharity gets nothing.

Question 17

What are the consequences of finding fraud in the inducement?

Answer 17

1. Only that part of the will affected by the fraud is invalid.
2. As to that part, the court has 3 options:
   1. give the property to the residuary devisees,
      if any; or
   2. If there is no residue, to the heirs at law by
      intestate succession; or
   3. constructive trust (to avoid unjust
      enrichment or fraud).*This avoids giving the wrongdoer the reward. So in charity/son hypo, son would get the $, which he used fraud to get. Not fair. Instead son becomes a constructive trustee and holds the money in trust for the intended beneficiary as determined by the court.

Question 18

Distinguish fraud in the execution from fraud in the inducement:

Answer 18

In fraud in the execution, T does not intend the document to be his will. In fraud in the inducement, T intends the document to be his will, however, the contents are affected by misrepresentation.

Question 19

Define fraud in preventing T from revoking:

Answer 19

This is a variation of fraud in the inducement.

E.g.: T’s will leaves everything to son, but T later changes her mind and wants to tleave everything to charity. Due to son’s fraud (lie about FBI investigating charity), T does not revoke the will. Because of the fraud, there is no revocation.

Question 20

What is the consequence of fraud in preventing T from revoking?

Answer 20

1. the court will not probate the will and thus the property will go to the heirs.
2. Simultaneously, the court will also decree that the heir is a ocnstructive trustee who has one duty: to transfer the property to the intended beneficiary as determined by the court.

(Son = constructive trustee, and charity = intended beneficiary).

Question 21

Define undue influence:

Answer 21

T’s free agency is subjugated.

3 ways to establish:

1. prima facie case
2. case law presumption
3. statutory presumption

Question 22

What are the 3 ways to establish undue influence?

Answer 22

3 ways to establish:

1. prima facie case
2. case law presumption
3. statutory presumption

Question 23

What are the 4 elements needed to establish the prima facie case for undue influence?

Answer 23

1. Susceptibility: T has a weakness such that he is able to have his free will subjugated. Can be anything (psychological, financial, physical).
2. Opportunity: the wrongdoer had access to the T. (Friend or business associate always has access–never an issue in dispute on the exam, just list it).
3. Active participation: it is the wrongful act that gets the gift. Active participation can be the wrongdoer’s use of force, threat of force, blackmail, or dragging the 90 yr. old T to the W’s attorney.
4. An unnatural result: the wrongdoer is taking a devise and this person ordinarily woudl not be expected to take a devise. Typically, it is one who has no relationship to the T.
   • E.g. T’s EE blackmails T so that the EE gets everything and T’s family gets nothing.

Question 24

On the bar exam, when faced with an undue influence case, discuss ___________.

Answer 24

All three tests. Will definitely be able to discuss first 2 and likely all 3.

3 ways to establish:

1. prima facie case
2. case law presumption
3. statutory presumption

Question 25

What are the 3 elements to establish a case law presumption case of undue influence.

Answer 25

1. A confidential relationship exists between T and wrongdoer. CA recognizes all of the common law confidential relationships:
   • atty/ client
   • doctor/ patient
   • guardian/ ward
   • clergy person/ penitent
   • trustee/ beneficiary
   • Anytime one person reposes trust in another.
   Conflidential rel’p can exist between 2 close
   friends.
2. Active participation: it is the wrongful act that gets the gift. (act of force/ blackmail, e.g.)
3. An unnatural result: the wrongdoer is taking a devise and this person ordinarily woudl not be expected to take a devise

Question 26

What are the consequences of finding undue influence? (by prima facie case or by case law presumption):

Answer 26

1. Only that part of the will affected by undue influence is invalid.
2. The part affected goes to:
   • the residuary devisees if any, or if none:
   • to the heirs at law by intestate succession; or
   • Simulataneously via constructive trust remedy
   to intended beneficiary
   • Court will choose the remedy that gets the
   best result and avoids unjust enrichment.

Question 27

Distinguish undue influence from fraud in the inducement:

Answer 27

In fraud you have a lie.

In undue influece, the wrongdoer is being perfectly honest: “Leave me all your property or I will kill your family.” There is honesty here, albeit a wrong.

Question 28

What is the statutory presumption of undue influence?

Answer 28

California law statutorily presumes that a provision of an instrument (will, trust, deed) making a donative transfer to the following persons is the product of undue influence:

1. the person who drafted the instrument
2. a person in a fiduciary relationship with the transferor who transcribed the instruement or casue it to be transcribed. (R)
3. A care custodian of a dependant adult but only if the instrument was executed during the period in which the care custodian provided services to the transferor, or within 90 days before or after that period. (R)
4. a person who is a spouse, domestic partner, or blood relative related within the 3rd degree of any person described in 1-3
5. A person who is a cohabitant or EE of any person described in 1-3.
6. A partner, shareholder, or employer of a law firm in which the drafter has an ownership interest.

Statutory presumption is conclusive w/ respect to 1, 4, 5, 6.

Statutory presumption is rebuttable by clear and convincing evidence for 2 or 3.

Question 29

The statutory presumption for undue influence does not apply to:

Answer 29

1. a donative transfer to a person who is a the spouse, domestic partner, or a cohabitant of the transferor, or to a person related by blood, within the 4th degree to the transferor. (So, e.g., if caregiver is spouse, doesn’t apply).
2. An instrument that is drafted or transcribed by a person who is the spouse, domestic partner, or cohabitant of the transferor, or by a person related by blood, within the 4th degree to transferor. (E.g. drafter is transferor’s adult child).
3. An instrument reviewed by an independent attorney, who counsels the transferor about the nature and consequences of the intended disposition and executes a certificate stating that the attorney concludes that the disposition is not the product of undue influence.
4. transfer that does not exceed $5,000 if the estate is over $100,000 (small gift/ big estate).

Question 30

Consequences of finding undue influence under the statutory presumption:

Answer 30

1. the transferee is deemed to have predeceased the transferor without spouse, domestic partner, or issue. Thus, the gift lapses or fails, meaning that the transferee does not take.
2. As to that lapsed gift, it passes to the residuary devisee if any, or if no residue, or if the lapsed gift is itself the residue, to the heirs at law by intestate succession.

Question 31

What is a “care custodian” under the statutory presumption for undue influence?

Answer 31

person who provides health or social services to a dependent adult. Does not include a person who provided services without compensation if the person had a personal rel’p with the dependent adult at least 90 days before providing those services.

E.g.: adminsitration of medicine, wound care, cooking, assistance with hygiene, shopping, or companionship.

Question 32

What is a “dependant adult” under the statutory presumption for undue influence?

Answer 32

a person who at the time of executing the instrument was 18 or older and:
1. was unable to provide for his personal needs,
OR
2. due to a deficit in mental function, had difficulty managing his or her own financial affairs or resisting undue influence.

Question 33

What are the degrees of relationship from a transferor?

Answer 33

First degree: children, parents

Second degree: grandparents, grandchildren, siblings

Third degree: great-grandparents, great-grandchildren, aunts & uncles, nephews & nieces

Fourth degree: grand nephews and nieces, first cousins, great aunts and uncles

Question 34

If T’s lawyer drafts the will and the devisee is the lawyer or the lawyer’s family, how should you analyze?

Answer 34

Invalidate the gift on all 3 theories of undue influence:
prima facie case
case law presumption
statutory presumption

Discuss all 3!

Question 35

What are the 6 issues in mistake?

Answer 35

1. mistake in content
2. mistake in execution
3. mistake in inducement
4. mistake in description (ambiguity)
5. mistake in the validity of a subsequent
   testamentary instrument (dependent relative
   revocation)
6. mistake involving living children (pretermission)

Question 36

What is the definintion of mistake in content?

Answer 36

When the wrong beneficiary is named or the wrong gift is made.

Question 37

What type of relief is given for mistake in content?

Answer 37

Depends on the type of mistake: ommission or addition:

Mistake in omission: No remedy
• E.g. T’s will states, “blackacre to John,” but T
wanted Blackacre to go to John and Mary
• Name is not added because courts do not
rewrite wills. Possible relief under DRR.

Mistake in addition: Court may excise mistake.
• E.g. T wants to execute a will that says,”
Blackacre to John” but the will actually reads
“Blackacre to John and Mary.” Accidental
addition.
• The court is not rewriting the will, just excising
a party of it.

Question 38

What is mistake in execution?

Answer 38

T signs the wrong document. Occurs in 2 situations:

1. T mistakenly signs his will believing it is a non-testamentary instrument.
   E.g. T signs his will thinking it is a power of atty
2. Reciprocal wills (husband leaves everything to wife, wife leaves everything to husband). Wife mistakenly signs husband’s will and he signs hers.

Question 39

What is the consequence of T mistakenly signing his will believing it to be a power of atty doc? What if wife signs husband’s will in reciprocal wills situation?

Answer 39

1. The will is not probated because testator did not intend the document to be a will.
2. the court may reform this will esp. if husband/wife/ domestic partners. Substitue the correct name–it is equitable.

Question 40

What is the definition of mistake in the inducement?

Answer 40

A particular gift is made or not made on the basis of T’s erroneous beliefs.

E.g T would like to leave John $1000, but does not because T erroneously thinks John is dead. John is really alive.

No relief is given.

Exception: releif will be given if both the mistake and what T would have doen but for the mistake appear on the face of the will.

E.g.: T’s will reads “I leave John nothing because John is dead, but were John not dead, I would leave John $1000.”

Question 41

What is the relief for mistake in the inducement?

Answer 41

E.g T would like to leave John $1000, but does not because T erroneously thinks John is dead. John is really alive.

No relief is given.

Exception: releif will be given if both the mistake and what T would have doen but for the mistake appear on the face of the will.

E.g.: T’s will reads “I leave John nothing because John is dead, but were John not dead, I would leave John $1000.”

Question 42

What is the definition of mistake in the description?

Answer 42

(ambiguity)
No one or nothing fits the description, or 2 or more persons or things fit the description.

E.g.:
• Two persons fit the description: “I leave my property to my cousin John.” T has 2 cousins named John.
•Two things fit the description: “I leave my beach-house to X.” T has 2 beach houses one on the west coast.

Question 43

What are the consequences of a mistake in description?

Answer 43

1. Distinguish between latent & patent ambiguities.
2. Modernly in CA, by statute:
   • introduce parol evidence for any type of
   ambiguity–latent or patent– to determine
   what T’s intent was.
   • So now introduce parol evidence to ascertain
   which cousin John Testator meant.

Latent Ambiguity:
On the face of the will there is no
problem. Everything seems fine on the face of the will. You introduce parol evidence to establish the ambiguity, then you introduce the evidence a second time to determine T’s intent.
meant).

Patent Ambiguity:
The ambiguity is apparent on the face of the will. E.g. T’s will reads “I have 2 cousins by the name of John; I leave $1000 to my cousin John.” Some older cases stated that no remedy was given in the case of p.a. not true anymore.

Question 44

Distinguish patent & latent ambiguity:

Answer 44

Latent Ambiguity:
on the face of the will there is no
problem. Everything seems fine on the face of the will. You introduce parol evidence to establish the ambiguity, then you introduce the evidence a second time to determine T’s intent.
meant).

Patent Ambiguity:
The ambiguity is apparent on the face of the wil. E.g. T’s will reads “I have 2 cousins by the name of John; I leave $1000 to my cousin John.” Some older cases stated that no remedy was given in the case of p.a. not true anymore.

Question 45

What is mistake in the validity of a subsequent testamentary instrument (DRR)?

Answer 45

Allows a court to disregard a revocation caused by mistake.

T executes Will #1 then executes will #2 and subsequently revokes will #1 thinking that will #2 effectuates his intent. But T is wrong! Will #2 either is invalid as a will, or, if it is valid as a will, fails to effectuate T’s intent. DRR allows the court to ignore the revocation of will #1 on the grounds that T revoked will #1 because T mistakenly thought will #2 effectuated his intent. .

Question 46

T/F: A will can be revoked by physical act.

Answer 46

True. A physical act includes burning, tearing, destroying, or cancelling (crossing out or lining out w/ a pen or pencil).

E.g. T executes a will and subsequently, with the intent to revoke it, rips it up. T has revoked his will by physical act.

Important basis for DRR.

Question 47

T/F A will can be revoked by a subsequently executed will.

Answer 47

True.

E.g. T executes Will #1. Thereafter, T executes Will #2, which expressly revokes Will #1. Will #2 has revoked Will #1.

Important basis for DRR.

Question 48

What is the rationale for DRR?

Answer 48

1. T simply made a mistake in the revocation of Will #1 and
2. notwithstanding the mistake, we know what T’s intent is because T stated his testamentary plan, not once but twice (the 2 wills are very similar). As between intestacy or Will #1, T would want will #1 probated.

Question 49

What is the rule/ requirements for DRR?

Answer 49

1. If T revokes her will, or a portion thereof,
2. in the mistaken beleif that a substantially identical will or codicil effectuates her intent,
3. then, by operation of law,
4. the revocation of the first will be deemed conditional, dependent, and relative to the second effectuating T’s intent
5. If the 2nd does not effectuate T’s intent, the first (by pure legal fiction) was never revoked.

Question 50

What are the 2 situations where DRR will show up on the bar exam?

Answer 50

1. Will #1 is revoked by physical act (extremely common).

2. Will #1 is revoked by subsequent instrument.

Question 51

Remember, for DRR, Will #1 and Will #2 must be ______________.

Answer 51

substantially the same

Question 52

If will #1 is revoked by physical act by being destroyed, Will #1 can still be probated (even though its been destroyed) under CA’s lost will provisions:

Answer 52

1. a lost will or accidentally destroyed will can be probated if at least one witness testifies as to the terms of the will.
2. the witness does not necessarily have to be one of the attesting witnesses. e.g. can be the lawyer who drafted the will.

Question 53

What is the definition of mistake of living children?

Answer 53

Type of pretermission problem regarding children. Pretermission is an acciental omission.

Question 54

What is the rule for mistake of living children?

Answer 54

A pretermitted child takes an intestate share of the estate (which includes the assets in T’s inter-vivos trust).

• A child is pretermitted if born or adopted after all testatmentary instruments are executed and not provided for in any testamentary instrument.

Question 55

What does the term testamentary instrument include?

Answer 55

will, codicil, revocable inter-vivos trust established by T during T’s lifetime.

Question 56

What is the corollary to the rule for mistake of living children?

Exception to the corollary?

Answer 56

A child born or adopted before all testamentary instruments are executed and not provded for in any instrument is not pretermitted. Child takes nothing.

Exception: A child born or adopted before all testamentary instruments are executed and not provided for in any of the instruments is treated as if pretermitted if the only reason the child was not provided for in the testamentary instrument is because T erroneously thought the child to be dead or nonexistent. Mistake.

E.g.: T fathers a child and doesn’t know the child exists.

Question 57

What are the 5 issues regarding the components of the will?

Answer 57

1. integration
2. incorporation by reference
3. facts of independent significance
4. writing disposing of limited tangible personal property
5. pour-over wills

Question 58

What is integration? (definition)

Answer 58

Term that refers to the question of which papers make up the will.

• If you have a will written on only one piece of paper, there is no issue of integration.
• But if testator executes a 10 page will, the question arises: what papers make up the will.

Question 59

What are the 2 elements required for papers to be integrated?

Answer 59

1. intent: T must have intended for the papers in question to be part of the will; and
2. presence: the paper must have been actually or physically present at the time of execution.

Question 60

Testator goes to lawyer to execute his typed
10-page will. Upon reading it testator states to lawyer that page five does not manifest his intent. Lawyer tells testator to execute the will as it is, and promises tomorrow to have the secretary type a new page five which will be inserted and which
will be inserted and which will manifest the T’s intent. This happens. The next day the secretary types new page five and inserts it in the will. Testator dies. What result?

Answer 60

Only pages 1-4 and 6-10 are probated.

Old page 5 is not probated because it was not integrated: T did not intend old page 5 to be a part of his will.

New page 5 is not probated because it was not integrated: was not physically present when T executed his will.

Question 61

What are 2 ways to infer integration?

Answer 61

1. Establish a physical connection among all the pages. If the papers are stapled together, it is ninferred that T intended the papers to be part of the will and were phsyically present at the time of execution.
2. Establish a logical connection: Does the last word on page 1 make sense in relation to the first word on page 2? If so, integration is inferred.

Question 62

What is incorporation by reference?

Answer 62

The theory of incorporation by reference is that a non-integrated writing is given testamentary effect adn becomes part of the will. Now admitted into probate.

E.g.: T’s will states, “I leave my property to the grantee named on the ABC deed.”
•From the 4 corners of the will, we don’t know who the grantee of the deed is. We can only use parol evidence if incorporation by reference elements are met. Otherwise, using parol evidence violates the CA probate code (statute of wills).

• This deed is a writing, in existence when the will was executed, clearly identified in the will. Thus deed will become admitted into probate.

Question 63

What are the elements to incorporation by reference?

Answer 63

1. document or a writing
2. document or writing must have been in existence when the will was executed.
3. document must be clearly identified in the will
4. T must ahve intended to incorporate the doc into the will
5. If you establish elements 1-3, 4 will be implied by the court.

Question 64

T’s will states, “I leave my property to the grantee named on the ABC deed.” The ABC deed is invalid. What result?

Answer 64

Under incorporation by reference, deed is a writing, in existence when the will was executed, clearly identified in the will. Thus deed will become admitted into probate.

It does not matter that the deed is invalid. The document does not have to be valid for what it puports to stand for.

Thus, you can incorporate by reference an invalid deed, an invalid contract, or even an invalid will of the testator or of a third person.

Question 65

T/F: you can incoroporate by reference an invalid deed, an invalid contract, or even an invalid will of the testator or of a third person.

Answer 65

True. The validity of the document is not relevant.

Question 66

What is the doctrine of facts of independent significance?

Answer 66

Who a beneficiary is, or what gift is given, may be given meaning by facts of signficance independent from T’s will.

E.g. T’s will states: I leave all property to the church I am a member of at the time of my death.

Though we normally dont’ allow parol evidence whenever we want (because of statute of wills), this situation allows for parole evidence.

Because of the independent reasons for joining a church, there is truthfulness to such a fact or act. Susceptible of independent verification.

Question 67

When should you use the doctrine of facts of independent significance?

Answer 67

Ask yourself: Even without the will, woudl this fact have existed?

E.g.:
1. T’s will states, “I leave all my property to the peopel who are in my employ at the time of my death.”
• Fact of independent significance because even without the will, these people would exist: they would be in T’s employ because peopel have EEs for a variety of reasons, but not just to validate a devise.

2. T’s will states, “I leave all my property to people I had Thanksgiving dinner with in 1999.”
   •Past fact, independent of T’s will.
3. T’s will states: “I leave all my property to the peopel I will name on a note tomorrow.”
   • Incorporation by reference will not work because the note was not in existence at the time the will was executed.
   • Independent signfiicance will not work because without the will, this note would not exist.

Question 68

Writing disposing of limited tangible personal property (Section 6132) states that:

Answer 68

a writing, whether or not it can be incorporated by reference or is a fact of independent significance, may be admitted into probate, and thus, given testamentary effect.

Question 69

What are the elements needed under Section 6132?

Answer 69

1. Writing must be:
   • referred to in the will,
   • dated, and
   • either signed or handwriteen by the testator
   • *But even if writing isn’t dated or
   signed/handwritten, writing can still be
   admitted if extrinsic evidence establishes
   the T’s intend re disposition of the items
   described in the referenced writing.
2. the writing must describe the items and recipients (beneficiaries) with reasonable certainty
3. the writing may be executed before or after the will
4. the writing directs the disposition of tangible personal property (excluding cash and property used primarily in a trade or business) valued, at the time of T’s death, at not more than $5000 per item and not more than $25,000 in the aggregate.

Question 70

T’s will states, “I give my car to the person who is identified on a note I executed yesterday.” The writing signed and dated by T states: “2003 Honda CR-V: Mary Jones.” At the time of T’s death, the car is not business property an dis worth not more than $5000. On the bar exam, analyze based on all 3 theories:

Answer 70

1. Incorporation by reference: Writing, in existence when will was executed, clearly identified in the will, and intended by testatory to be incorporated. Yes for incorporation.
2. Facts of independent significance: Apart from the will, the note has no significance. While the car can be a fact of independent significance, the name of the beneficiary clearly is not. Thus, this is a variation of, “I leave all my property to the people I will name on a note tomorrow.” In short, but for the will, this note would not exist. Thus, facts of independent significance won’t work.
3. Section 6132: Irrespective of incorporation and
   independent significance, the writing is referred to in the will; dated, and signed by the testator; describes the property and the recipient with reasonable certainty; and is personal tangible property not used in T’s business worth not more than $5,000. Thus, section 6132 works.

Question 71

If the value of an item of tangible personal property described in the writing exceeds $5000, that item __________ and that item passes _______________. Such an item ___________ towards the $25,000 limit.

Answer 71

is not subject to section 6132;

to the residuary clause of the will (and if none, to intestate);

is not counted

Question 72

If any person designated to receive property in the writing dies before the T, the property passes ____________ and, in the absence of directions, ______________.

Answer 72

as directed in the writing

the disposition lapses.

Question 73

The testator may make subsequent handwriteen or signed changes to any writing (no witnesses are required for this). If there is an inconsistent disposition of tangible personal propety as between writings, __________.

Answer 73

The last writing controls.

Question 74

In what situation is a pour-over will created?

Answer 74

Part or all of T’s estate is devised to the trustee of an inter-vivos trust, to be administered pursuant to the terms of that trust.

*Problem here is that we dont’ know from the 4 corners who the trustee is, who the beneficiaries are, what are the term sof the trust.

Question 75

What are the 3 ways to validate a pour-over provision?

Answer 75

1. Incorporation by Reference
2. Independent Significance
3. Uniform Testamentary Additions to Trusts Act (UTATA).

Question 76

On Jan.1, T executes a document creating the ABC trust, an inter-vivos trust. On Jan. 2, T executes his will. In the will, T devises part or all of his estate, “to the trustee of the ABC trust, to be administered pursuant to the terms of that trust.” T dies. Can the provision be validated?

Answer 76

Incorporation by reference
1. There is a trust instrument in writing
2. in existence when the will was executed
3. clearly identified in the will
4. T intended to incorporate the trust into the will
Thus, the trust instrument will be admitted into probate and the pour-over provision will be validated.

Independent Signficance
1. Even without the will, we would have this
inter-vivos trust.
Thus, the trust instrument is a fact of significance independent from the will and the pour-over provision can be validated.

Uniform Testamentary Additions To Trusts Act
1. So long as you ahve a valid trust, which was in existence before the will was executed, or at the time of execution, the pour-over provision will be valid by statute.
• Modification of the trust after execution of the
will doesn’t matter for the statute. Still in
existence at the time of execution.

Question 77

On Jan. 1, T creates the inter-vivos trust. On Jan. 2 T executes the will, devising part or all of her estate to “the trustee of the ABC trust, to be administered pursuant to the terms fo the trust.” On Jan. 3, T modifies the trust. T dies. Validate?

Answer 77

1. Incorporation doesn’t work because the trust was modified was not in existence at the time the will was executed.
2. Independent Signficance works: The trust as modified is still a fact of significance indpendent from the will.
3. UTATA works. A pour-over provision under the act is valid even if the trust is subsequently modified.

It is highly unlikely that California Probate Code section 6132 (dealing with a writing that disposes of limited amounts of personal property; see above) would ever apply to validate a pour-over situation on the bar exam. The reason is that for
section 6132 to apply, we would need the highly unusual fact pattern of a trust instrument which has a corpus of not more than $25,000 of non-business, non-cash personal property with individual items not exceeding $5,000. In the highly unlikely event that you get a pour-over situation with such facts, then you also would validate the pour-over provision by discussing
section 6132 (in addition to incorporation by reference, independent significance and UTATTA). But, again, this is an unlikely factual scenario on the bar exam.

Question 78

What are the 3 issues in formalities of execution for attested or formal wills (witnessed wills)?

Answer 78

1. Elements for an attested will
2. Interested witness problem
3. Conditional wills

Question 79

What are the elements for an Attested Will? (the traditional formalities)

Answer 79

1. Will must be in writing
2. will must be signed by one of the following:
   • T (nicknames are ok, X if T is illiterate)
   • 3rd person, in T’s presence and at T’s
   direction. (arises if T is incapacitated)
   • By a conservator pursuant to a court order
3. The signing by T, 3rd person, or the conservator must be done in the presence of 2 witnesses, both present at the same time.
   • If T previously signed alone or with only 1
   present, T doesn’t have to sign again but can
   acknowledge the will or signature. (This is
   my will).
4. Witnesses must sign the will during the T’s
   lifetime.
5. Witnesses understand that the instrument they
   sign is T’s will.

Question 80

What is the clear & convincing standard or the harmless error rule for an attested will?

Answer 80

If the will does not satisfy elements 3, 4, or 5 of the traditional formalities approach, the will can still be admitted into probate if the proponent of the will establishes by clear and convincing evidence that at the time the T signed the will, he or she intended the will to constitute his or her will.

Question 81

What is the approach to take for a formalities of execution question?

Answer 81

1. First, analyze under traditional formalities test.
2. If there is a problem with compliance under the traditional formalities approach for elements 3-5, then use the clear and convicing standard for those elements.

3= T must sign or acknowledge in the presence of 2 witnesses, both witnesses present at the same time

4= witnesses must sign during T’s lifetime

5= witnesses understand that the document they sign is T’s will.

Question 82

T signs his will in the presence of Witness #1 only. The next day, T acknowledges his will or signature in the presence of Witness #2 only. Thereafter, T dies. What result?

Answer 82

T did not meet traditional formalities because he didn’t sign in the presence of 2 witnesses. (3)

Nonetheless, if the proponent of the will can establish by clear and convincing evidence that T intended the will to be his will when T signed it, the will is admitted into probate.

Question 83

T signs his will in the presence of the 2 witnesses, but the witnesses forget to sign the will. T thereafter dies. The witnesses sign after T’s death.

Answer 83

On these facts, T did not execute his will in compliance with the traditional formalities. He violated (4): witneses must sign during T’s lifetime.

But again, if the proponent of the will can
establish by clear and convincing evidence that T intended the will to be his will when T signed it, the will is admitted into probate.

Question 84

T, without declaring the document to be his will, signs his will in the presence of the 2
witnesses, but only Witness #1 understands that the document is T’s will; Witness #2 signs the document but does not know what the document is. T thereafter dies.

Answer 84

This fails element 5, that the witnesses have to understand that the document they sign is T’s will)

But if the proponent can establish by clear and convincing evidence that that T intended the will to be his will when T signed it, the will is admitted into probate.

Question 85

T/F For attested wills (traditional formalities):

1. The witnesses do not have to sign in the presence of each other.
2. The witnesses do not have to sign in the presence of testator.
3. Testator does not have to declare to the witnesses, “this is my will” because CA does not have a so-called publication requirement.
4. Neither testator nor the witnesses have to sign at the end of the will: Signing anywhere on the will is okay in California.

Answer 85

1. True
2. True
3. True; nonetheless, something about the execution process must convey to the witnesses the information necessary for them to understand that the document being signed is the T’s will.
4. True

Question 86

Must the Testator sign the will before the witnesses sign? (in attested will/ Typically, chronologically speaking, the normal course of events is that first testator signs the will and then the witnesses sign the will. But what if the witnesses sign the will before the testator signs?

Answer 86

The California statute is ambiguous as to
whether the testator must sign before either or both of the witnesses.

[a] Some courts in other jurisdictions have construed similar state statutes as implicitly imposing a requirement that the testator sign first.

[b] More recent cases in other jurisdictions, however, have held that even if the witnesses sign first, the will is still valid so long as the testator signs before either witness leaves the room.

[c] On the bar exam, if you get a hypo where the witnesses
sign before the testator signs, tell the bar examiners the following:
•If there is no issue of fraud or mistake, the will should be deemed valid under California’s substantial compliance doctrine (that is, if there is no fraud or mistake, the will is validly executed if there is substantial compliance with the Probate Code, even if not literal compliance)

[d] In addition to the preceding analysis, also tell the bar examiners that if the proponent establishes by clear and convincing evidence that T intended the will to be his or her will, the document is the will and is admitted into probate.

Question 87

For an attested will (traditional formalities), T must sign or acknowledge in the presence of two witnesses. What does presence mean?

Answer 87

One of 2 things:

1. Sight presence: The witnesses see the T sign
2. Conscious presence: T signs or acknowledges within the witnesses hearing and the witnesses know what is being done.

*Remember failure of the T to sign or acknowledge in the presence of 2 witnesses does not mean that the will cannot be rpobated; such a will still may be admitted into probate under the clear and convincing standard.

Question 88

What is an interested witness?

Answer 88

A witness who is a beneficiary under the will.

Question 89

What are the consequences of finding an interested witness in an attested will (traditional formalities)?

Answer 89

1. The will is not invalid.
2. But unless there are 2 other disinterested witnesses, a presumption arises that the witness-beneficiary secured the gift by wrongdoing.
3. If witness-beneficiary rebuts the presumption of wrongdoing, great, W/B takes the gift.
   •If witness-beneficiary cannot rebut the presumption of wrongdoing, he or she takes the amount as does not exceed what would be given intestacy.

*The presumption of wrongdoing is inapplicable if witness-beneficiary is taking only in a fiduciary capacity.

Question 90

What is a conditional will?

Answer 90

A conditional will is one whose validity is made conditional by its own terms.

E.g.: T’s will states: This is my will if I die in Europe during my vacation.
• The will is to be probated only if the condition is satsified: that T dies in Europe on his vacation.

Conditional wills can be formal (attested) wills or holographic wills.

Question 91

What are the 3 main issues that arise with execution of holographic (handwritten) rules?

Answer 91

1. elements for a valid holograph
2. testamentary intent
3. dates

Question 92

What are the elements for a holographic will?

Answer 92

1. must be signed by T
   • signature can be anywhere
   • nicknames & X ok.
2. the material provisions must be in T’s own
   handwriting. material provisions:
   • gifts made, and
   • beneficiaries’ names

Question 93

T/F: In a holographic will, a statement of testamentary intent nned not be on the face of the will and in testator’s handwriting.

Answer 93

True.

Question 94

If T signs and executes a writing that lists just the names of people and next to each name, an asset that T owns, is this a holographic will, or just a list?

Answer 94

Extrinsic evidence is admissible to determine T’s testamentary intent.

E.g. if T told peopel that she’s executed her will, then doc is a will and is admitted into probate.

Question 95

What if teh testamentary intent in holographic will is part of a commercially printed form will?

Answer 95

Totally fine. CA Probate Code specifically states that this is not a problem.

Question 96

Is a date required on a holographic will?

Answer 96

No, but lack of date can create a problem with

1. inconsistent wills and
2. capacity

If an undated holograph is inconsistent with the provisions of another will (either a dated holographic will, a dated will, or an undated witnessed will), the undated holograph is inavlid to the extent of the inconsistency–unless the undated holograph’s time of execution is established to be after teh date of execution of the other will.

• If 2 undated holographs, then if you can't establish which one came last, niether holograph is probated to the extent of the inconsistency.

Question 97

If a holograph is undated, and if it is established that the testator lacked testamentary capacity at any time during which the will might have been executed, _______________. Unless, it is established that __________________.

Answer 97

the holograph is invalid

it was executed at a time when the T had testamentary capacity

Question 98

What are the main issue regarding the concept of choice of law?

Answer 98

Can the will be admitted into probate in CA?

Question 99

A will is admitted inot probate in California if the will complies with the formalities of execution of: (choice of law)

Answer 99

(Any of the 3 will satisfy):

1. CA law
2. the law of the place where the will was executed

OR

3. the law of the place of T’s domicile at the time of execution

Question 100

Testator is a domiciliary of New York. Testator goes to North Carolina to have his will executed. Thereafter testator becomes a domiciliary of California and dies here in California. Can the will be admitted into probate in CA?

Answer 100

Yes, if the will complies with the formalities of execution of either:

1. CA law
2. North Carolina (where will was executed)
3. New York (T’s domicile at the time of execution)

Question 101

What is the definition of a codicil?

Answer 101

A testamentary instrument executed in compliance with the CA probate code which modifies, amends, or revokes a will.

Question 102

What does a codicil do? (what is republication?)

Answer 102

A codicil republishes a will. A codicil causes the will to speak from the date that the codicil is executed on. (down-dating)

Comes into play in 2 scenarios:

1. pour over wills and incorporation by reference
2. pretermission problems.

Question 103

How does a codicil affect a pour over will and the use of incorporation by reference to validate the pour over provision?

Answer 103

Example:

1. On January 1, testator executes an inter-vivos trust.
2. On January 2, testator executes a will with a pour-over provision.
3. On January 3, the trust is amended.
4. On these facts, incorporation by reference will not work because the trust as modified was not in existence when the will was executed.
5. On Jan. 4th, T executes a codicil which republishes the will.

Because the codicil republishes the will, the codicil causes the will to speak from Jan. 4. Thus, incorporation by reference now works because the trust as modified was in existence on the date that the will is deemed executed, which now is Jan. 4

Question 104

On the bar exam, when you have a pretermission problem and a subsequent republication of the will by the codicil, discuss both theories to preclude an omitted child, spouse, or domestic partner from taking under our pretermission laws:

Answer 104

[a] the codicil republished the will, and, in the alternative,

[b] the codicil itself is a testamentary instrument, thus the birth, marriage, or domestic partnership took place before the codicil (testamentary instrument) was executed, consequently
precluding any pretermission attack by the child, spouse, or domestic partner.

Question 105

How does a codicil affect pretermission?

Answer 105

•Year 1 the will is executed (everything to charity).
•Year 2 child is born or testator marries or enters into a domestic partnership (child, spouse, or domestic partner is pretermitted).
•Year 3 a codicil is executed which republishes the will.
•Because the codicil republishes the will, the will now speaks from Year 3.
•As such, there is no pretermission because the birth, marriage, or domestic partnership is deemed to have taken place before the will was executed.
•••Note that there is an alternative theory to prevent pretermission on the facts given in the above example: Because a codicil is
itself deemed to be a testamentary instrument, the birth of the child or marriage or domestic partnership took place before the codicil was executed. This alone (without any discussion of
republication) precludes the finding of a pretermission.

On the bar exam, when you have a pretermission problem and a subsequent republication of the will by the codicil, discuss both theories to preclude an omitted child, spouse, or domestic partner from taking under our pretermission laws:
[a] the codicil republished the will, and, in the alternative,

[b] the codicil itself is a testamentary instrument, thus the birth, marriage, or domestic partnership took place before the codicil (testamentary instrument) was executed, consequently
precluding any pretermission attack by the child, spouse, or domestic partner.

Question 106

What are the rules regarding the revocation of codicils?

Answer 106

1. If testator executes a will, then executes a codicil, and subsequently revokes his codicil, there is a rebuttable presumption that testator intended to revoke only his codicil.
2. On the other hand, if testator executes a will, then executes a codicil, and testator subsequently revokes the will, there is a rebutable presumption that testator intended to revoke the will and codicil.

Question 107

What are the 4 main issues to look out for when dealing with revocation of a will by physical act?

Answer 107

1. elements
2. cancellations & interlinieations
3. duplicate wills
4. mutilated wills

Question 108

What are the elements for revocation by physical act?

Answer 108

1. Will must be burned, torn, cancelled, destroyed or obliterated.
   •Cancellation = crossing out with a pen/pencil
   • Obliteration = erasing, for example
2. T must have the simultaneous intent to revoke.
   • If T accidentally destroys his will, thereafter
   finds out about it and says, “that’s o, I
   wanted to revoke it anyway” the will is NOT
   revoked.
3. The act must be done either by T, or by some one in T’s presence and at his direction.
   • presence = 1. Sight presence: The
   witnesses see the T sign
   2. Conscious presence: T signs
   or acknowledges within the
   witnesses hearing and the
   witnesses know what is
   being done.

Question 109

Define cancellations & interlineations:

Answer 109

Cancellation = crossing out or lining through
Interlineation = writing between the lines

Question 110

T executes a typed formal (attested) will that states, “I leave $1000 to Mary.” T then takes his pen, crosses out the $1000 and interlineates “$1500” just above the $1000. T signs his name. Holographic codicil on top of a formal will?

Answer 110

1. No. The $1500 gift is invalid as a holograph because teh material provisions (gifts & names of beneficiaries) are not in T’s own handwriting. (mary is typed).
   • The $1500 change is invalid.
   • The $1000 is revoked by physical act
   (cancellation)
   • Mary, therefore takes nothing.
2. BUT, DRR could save her.
   •The revocation of the $1000 was conditional,
   dependent, and relative to the $1500 being
   effective.
   • Because the $1500 was not effective, by
   operation of law, the $1000 was never
   revoked.
3. BUT compare:
   •If the original gift to Mary was $1500 and the interlineation was down to $1000, then DRR will not be used. Mary gets nothing.

If the interlineation is less than the cancelled provision, DRR will not be used.

Question 111

T executes a holographic will that states, “I leave $1000 to Mary.” T then takes his pen, crosses out the $1000 and interlineates just above the $1000, “$1500.” T does not sign his name again. What result?

Answer 111

On these facts, we have a revocation of the $1,000 by physical act (crossing out) and a valid new disposition: Mary takes the $1,500 because T’s prior signature is deemed adopted at the time the interlineation is made and all the material terms are in T’s own handwriting.

Question 112

T/F: A cancellation to increase a gift is prohibited.

Answer 112

True: you cannot increase a co-beneficiaries gift by cancellation.

E.g. I leave my farm to X and Y. T subsequently cancels out Y’s name. What does X take?
• X takes 1/2 of the farm.
• The other 1/2 goes to residuary devisees or, if
none, by intestacy

Question 113

E.g. I leave my farm to X and Y. T subsequently cancels out Y’s name. What does X take?

Answer 113

You cannot increase a co-beneficiaries gift by cancellation.
• X takes 1/2 of the farm.
• The other 1/2 goes to residuary devisees or, if
none, by intestacy

Question 114

An interlineation or other handwritten additon to a typed (attested) will that does not qualify as a holographic codicil may nonetheless be a valid cancellation.

Answer 114

True.

E.g.: T executes a valid typed formal will. Subsequently, T writes “Null and Void” across the face of the will.
• Without a signature accompanying null and void addition, the addition cannot be deemed a holographic codicil to the typed formal will.
• Nonetheless, writing “Null and void” even without a signature, is a valid cancellation of the typed formal will.

Question 115

What is the rule for duplicate wills?

Answer 115

If T, or someone in T’s presence and at his direction, revokes by physical act one of the duplicate originals, then the other duplicate original is also revoked, as a matter of law.

*Presence =
1. Sight presence: The
witnesses see the T sign
2. Conscious presence: T signs
or acknowledges within the
witnesses hearing and the
witnesses know what is
being done.

Question 116

What is a duplicate will?

Answer 116

Duplicate originals, not a photocopy of the signatures.

E.g. T and witnesses sign the will, then they do it again on a duplicate original. T signs and witnesses sign on duplicate #1 then do the same on #2–> 2 sets of original signatures.

Question 117

What is the consequence of finding a will in a mutilated condition?

Answer 117

If a will is found in a mutilated condition at T’s death, and when last seen it was in T’s possession, there is a rebuttable presumption that T mutilated the will with the intent to revoke the will.

E.g Testator has a safety box in a bank, and is the only one with access. At T’s death the will is found to be in a mutilated condition. It is presumed that testator mutilated the will with the intent of revoking the will.

Question 118

How many ways can Will #1 be revoked by Will #2?

Answer 118

Two ways: Express & Implied

Express: e.g., Will #2 says, “I hereby reovke all previously executed wills,” then Will #1 is revoked.

Implied: Will #2 revokes Will #1 by implication if Will #2 totally disposes of T’s estate.

Question 119

What are the rules for revival in CA?

Answer 119

1. If revoked by a physical act, Will #1 is not automatically revived . Will #1 is revived only if T manifests an intent to revive Will #1.

• E.g. T executes Will #1, then Will #2. T then revokes #2 by physical act. Will #1 is not automatically revived. Will #1 is only revived if T manifests an intent to revive Will #1. Oral statements by T at the time Will #2 was revoked are admissible.
• “Now will #1 is back in operation.” Clear, good.
• “Now everything is back how I want it.” Not clear. No revival.

2. If revoked by subsequent instrument, Will #1 is not automatically revived unless it appears from the terms of the codicil that T wanted #1 revived.

• T executes Will #1. T subsequnetly executes Will #2 which revokes Will #1. T subsequently revokes Will #2 by codicil. Will #1 is not automatically revived unless it appears from the terms of the codicil that T wanted will #1 revived.

Question 120

Testamentary instrument includes:

Answer 120

1. a will
2. a codicil
3. a revocable intervivos trust created by the decedent during decednt’s lifetime.

Question 121

What is an omitted or pretermitted child? Why is the issue categorized under revocation by operation of law?

Answer 121

1. A child born or adopted after all testamentary instruments are executed and not provided for in any testamentary insttument.
2. Revocation by operation of law becuase the consequence of finding an omitted child is that the child will receive an intestate share of assets decedent owned at death plus the assets held in any intervivos trust. In order to make this happen, other gifts will have to be abated or reduced. They are being taken away from others and given to the omitted child.

Question 122

What is the conseqence of finding an omitted child?

Answer 122

Revocation by operation of law becuase the consequence of finding an omitted child is that the child will receive an intestate share of assets decedent owned at death plus the assets held in any intervivos trust. In order to make this happen, other gifts will have to be abated or reduced. They are being taken away from others and given to the omitted child.

Question 123

What are the exceptions to the omitted child rules?

Answer 123

1. Omitted child receives nothing if Decedent’s failure to provide for the child in any testamentary instrument was intentional and that intention appears from the testamentary instrument.
2. At the time of execution of the testatmentary instrument, the decedent had one or more children and transferred by will or revocable inter vivos trust substantially all of his estate to the parent of the omitted child.
3. the decedent rpvodied for the child by transfer outside the testamentary instrument with the intention that the transfer is to be in lieu of any testamentary provision.

Question 124

What is an omitted spouse?

Answer 124

A surviving spouse who married the decedent after the execution of all testamentary instruments and is not provided for in any testamentary instrument.

Question 125

What are the consequences of finding an omitted spouse?

Answer 125

Consequence of finding an omitted spouse: spouse receives a statutory share of the decedent’s estate equal in value to that
which the spouse would have received if the decedent had died without ever having executed any testamentary instrument
(will, codicil, or intervivos trust). Thus, to put it more plainly, the omitted spouse receives a statutory share of assets decedent
owned at death plus the assets held in any revocable inter vivos trust. This statutory share that the omitted spouse receives is as
follows:

[a] The one-half of the community property owned by the decedent at death or in any revocable inter vivos trust (thus, because the omitted spouse already owned the other one-half, the omitted spouse now ends up with 100% of the community property).

[b] The one-half of the quasi-community property owned by decedent at death or in any revocable inter vivos trust (thus, because the omitted spouse already owned the other one-half, the omitted spouse now ends up with
100% of the quasi-community property).

[c] A share of the separate property of the decedent equal in value to that which the spouse would have received if the
decedent had died without ever having executed any testamentary instrument (will or trust), but in no event is the share to be more than one-half the value of the separate property in the estate.

Question 126

What are the exceptions to providing an omitted spouse with a statutory share?

Answer 126

1. Decedent’s failure to provide for the spouse in any testamentary instrument was intentional and that intention appears from the T.I.
2. Decedent provided for the spouse by transfer outside of the testamentary instruments with the intention that the transfer would be in lieu of any testamentary provision.
3. Waiver
   • must be in writing, signed by the waiving spouse before or during marriage; and
   • full disclosure of decedent of decendent’s finances
   • independent counsel by the waiving spouse

*But even if no 2 & 3, can still be enforced if waiving spouse had or should have known of the decedent’s finances and the waiver was in fact fair.

Question 127

What is a waiver in the context of omitted spouse?

Answer 127

Waiver= a voluntary relinquishment of a known right whether signed before or during marriage.

An omitted spouse can waive his/her statutory right to an intestate share (if not mentioned in the T.I.):

Any and all probate rights canb e waived: the right to take a probate homestead, a family allowance, an intestate share, and any other probate transfer rights, including the right to take as an omitted spouse.

There are 3 elements:

1. Waiver must be in writing, signed by teh waiving spouse before or duing marriage.
2. Full disclsure by decedent of decedent’s finances
3. independent counsel

*Even if no 2 & 3, waiver can still be enforced if the waiving spouse knew or should have known of the decedent’s finances AND the waiver was, in fact, fair.

Question 128

What are the rules for omitted domestic partners in CA law?

Answer 128

The same as for spouses! Way to go CA!

Question 129

What are the 4 major issues that need to be addressed in revocation by operation of law?

Answer 129

omitted child
omitted spouse
omitted domestic partner
final dissolution or marriage or domestic pship

Question 130

What are the 4 rules regarding testamentary gifts that deal with final dissolution of marriage/ domestic psip?

Answer 130

1. By operation of law, there is a revocation of the devise to the spouse or domestic partner if there is an annulment or final dissolution of marriage, or termination of domestic partnership.
2. Legal separation does not count.
3. The devise is reinstated if the will is unchanged and the T remarries the former spouse, or reestablishes another domestic parternship with the former domestic partner.
4. These rules to do not apply if the will expressly states otherwise.
   E.g. even if we get divorced, my spouse is to take all my property

Question 131

What is ademption?

Answer 131

REvocation by change in property holdings.

Question 132

What are the 4 types of gifts? (4 classifications?)

Answer 132

1. specific devise
2. general devise
3. demonstrative devise
4. residuary devise

Question 133

What is a specifc devise?

Answer 133

A gift of a particular item.
• Must be something unique about it.
• T must have the intent that the beneficiary take this particular thing, and nothing else. Because T is dead, we must look to objective manifestations of T’s intent.

Examples:
• real property is always specific
• an antique automobile is specific
• “100 shares of my Xerox stock.” Made specific by use of the word “my”
• stock if the stock of a closely held corporation

Question 134

What is a general devise?

Answer 134

a non-unique gift
• payable out of the general assets of the estate
• nothing unique or special about the gift
• E.g. = 100 shares of Microsoft
• Executor can make good the gift to the beneficiary by giving beneficiary either 100 shares of Microsoft or the fair market value of 100 shares of Microsoft as measured by its value at the time of T’s death.

Question 135

What is a demonstrable devise?

Answer 135

A hybrid between a general and specific gift.

It is a gift from a particular fund, but if that is not enough, the executor can resort to general property.

E.g : “To John I leave $1000 from my account at BOA.” If there is only $900 in teh account at BOA, this is how the executor pays John:
• First from the account at teh BOA
• Then the balance comes from general assets if necesary

Question 136

What is residuary devise?

Answer 136

All other property not expressly disposed of in the will. It is easy to recognize.

E.g.: “I leave the residue of my estate to Mary.”
“I leave the balance of my estate to Mary.”

Question 137

Why do we classify gifts?

Answer 137

3 reasons:

1. Only specific gifts adeem by extinction.
2. Only general gifts adeem by satisfaction. (generally)
3. For abatement purposes: There is a priority whereby gifts to beneficiaries have to be cut back or abated to come up with the statutory share for the omitted child or omitted spouse or omitted domestic partner.

Question 138

What is ademption by extinction?

Answer 138

Common law: Ademption by extinction is when a specific gift fails because T did not own the property at T’s death.

California: means the same thing, but CA cares about whether the T intended the gift to fail.
• There are 3 situations where no ademption by extinction.
• Common thread is that the T did not intend the gift to fail.

Question 139

In what situations where there be no ademption by extinction even though a specific gift failed because T did not owne the proeprty at the T’s death?

Answer 139

1. Securities Changing Form: arises because of mergers, stock splits, stock dividends, or reorganizations of corporations and stock is re-issued.
   •E.g. T devises a specific gift of 100 shares of ABC stock to beneficiary. During T’s lifetime, there is a reorgnaization so that the 100 shares of aABC were echanged for 1000 shares of XYZ. When T dies, he owns 1000 shares of XYZ.
   • Beneficiary gets the !000 shares. No ademption by extincition becuase T did not change the stock, a corporation did.
2. Conservator sells off the assets
   • Eg T devises Blackacre (sp. gift) to B. Thereafter, a conservator is appointed and with court approval, the conservator sells of Blackacre.
   • In CA, no ademption by extinction. B takes the net sales price of Blackacre. T didn’t sell the property, a conservator did.
3. Eminent domain award, casualty award, or an installment sale of peropty in which T holds the deed of trust as security for the sale.
   • No ademption by extinction with respect to the emeinent domain proceeds, etc. paid AFTER T’S death.
   • If before, see if you can trace the proceds into one bank account. Then you can argue T intended to keep those separate and gift them.

**In all other situations, classify as general v. specific and try to trace. Look for T’s intent.

Question 140

What is ademption by satisfaction?

Answer 140

T gives the beneficiary an intervivos down payment on a devise.

E.g. T executes his will leaving a $1000 devise to B. T later goest ot B and says, I’ve left you a $1000 devise in my will, but why should you wait. Here is $100 on account.”

If we conclude that the $100 is satisfication, then when T dies, B only gets $900.

Question 141

How do you establish satisfaction?

Answer 141

4 alternative ways:

1. The will itself provides for a deduction of the inter vivos gift
2. T declares in a contemporaneous writing that the gift is a satisfcation.
3. B acknowledges in a writing (at any time) the satsiffaction.
4. The property given in the satisfaction is the same property that is the subject of a specific gift to the B. This is an ademption by satsifaction and also by extinction.

Question 142

How to value the satisfaction if not made in cash?

Answer 142

if value expressed in contemporaneous writing of the T or B, that value is conclusive.

Otherwise, fair market value at the time the transferee came into possession of the property.

Question 143

What is an advancement?

Answer 143

Similar to a satisfaction.

An intervivos down payment made by an intestate to an heir apparent. (no will)

[satsifaction = intervivos down payment made on a devise–>includes a will]

Question 144

What are the ways to establish an advancement?

Answer 144

1. intestate declares in a contemporaneous writing (at any time) that the gift is an advancement.
2. heir acknowledges in a writing (at any time) that the gift is an advancement.

Question 145

What if heir apparent receives an advancement but predeceases the intestate?

Answer 145

The issue of the heir apparent is NOT treated as having received an advancement, unless the advancement provides otherwise.

Opposite of satisfaction.

Question 146

How to value the advancement if not made in cash?

Answer 146

1. If value expressed in contemporaneous writing of either the intestate or the heir-apparent, that value is conclusive.
2. In all other cases, property valued at the fair market value at the time the transferee (heir) came into possessions of the property.

Question 147

What are the requirements for a contract to not revoke (or to make a will)?

Answer 147

5 alternative ways in CA:

1. the will or other instrument (e.g. a trust) states the material provisions of the contract.
   E.g. T’s will states “In consideration of the $5000 Abel has given me, I have promised to devise Blackacre to Abel, and I hereby do devise B to A.
2. There is express reference in the will or other instrument (trust) to a contract.
   •In such a case, the term sof the k may be est. by extrinsic evidence, including oral testimony. SOF is not a problem. Even if real property.
3. There is a writing signed by the decedent evidencing a k.
4. There is clear and convincing evidnce of an agreement between decedent and promisee that is enforceable in equity.
5. There is clear and convincing evidence of a agreement between decedent and a 3rd person for teh benefit of the claimant that is enforceable in equity (estoppel).

Question 148

When does the cause of action accrue for a contract not to revoke (or make a will) arise?

Answer 148

Generally, when the decedent dies.

Exception: The COA accrues during D’s lifetime if the D is engaging in conduct which would be a fraud on the promisee.

E.g. T enters into a contract w/ Abel to devise Blackacre to Abel. Thereafter, T prepares to sell Blackacre with the intent to dissipate the funds. Abel may be irreparably harmed if the sale goes through. Abel may be ablet o secure an injunction.

Question 149

What is a joint wil?

Answer 149

the will of 2 or more people on one document.
• the provisions dont’ have to be reciprocal
• when the first person dies, the will is probated, when the second person dies, the will is probated again

Question 150

What is a mutual will?

Answer 150

The separate wills of 2 or more people that are reciprocal.

E.g. H & W execute their own separate wills. H leaves everything to W. W leaves everything to H.

Question 151

What is a joint and mutual will?

Answer 151

A document that has reciprocal provisions on one instruent.

Question 152

T/F: The execution of a joint will, or mutual will, or a joint and mutual will does not create a presumption of a contract to not revoke or make a will.

Answer 152

True. Though it may be evidence of a contract, in conjunction with other factrs.

Question 153

What are the remedies available to a promissee of a joint will, reciprocal will, or joint and mutual will?

Answer 153

1. Damages: P can sue decednt’s estate for damages
2. Specific performance: P can seek to force the executor to comply with the terms of the contract.
3. Constructive trust remedy: the court can probate the will as it is, giving the property to the devisee, and make the devisee a constructive truess who will have only one obligation: to transfer the property to the promisee of the contract.

Question 154

What is teh spousal/domestic partner protection?

Answer 154

Protection is given to the surviving spouse or domestic partner based on the community property system.

Question 155

What are the rules to protect the surviving spouse or domestic partner?

Answer 155

1. Protection regarding community property: T acn dispose of only 1/2 of the ocmmunity property (surviving spouse or surviving domestic partner owns the other 1/2)
2. Protection regarding quasi-community property:
   •If T is the cquiring partner, cna dispose of only 1/2 of the quasi-community property.
   • Non-acquring spouse has no testamentary power to dpsose of the acquiring spouse’s or domestic partner’s quasi community property during the lifetime of the acquiring sposue/ DP.
3. Widow’s election (widower & surviving DP too): arises when T attempts to dispose of more than 1/2 the ocmmunity property of 1/2 the quasi-community property.
   • To invoke the widow’s election means:
   1. Taking under the will: the surviviro may accept the gift given in T’s will in lieu of his or her statutory right.
   2. Taking against the will: Or, survivor can renounce benefits in the will and confirm his/ her rights to the 1/2 community property and 1/2 quasi property.

Question 156

What is the rule for protection regarding illusory transfers of quasi community property and the widow’s election:

Answer 156

The general rule is that an inter-vivos transfer by the D (acquiring spouse) of the quasi community property is allowed to a third person witout consideration.

Exception: The transfer will not be allowed, however, when the transfer of the quasi community property is deemed illusory and the surviving spouse invokes the widow’s eleciton.

Illusory= the decedent retained some interest or control over the property. Ownershp, use, co-tenancy, etc.

In such a case, upon the death of the decedent (acquiring sposue), the surviving spouse may require the transferee to restore 1/2 of the quasi property to the decedent’s estate.

Question 157

Certain killers cannot take any benefits under the will or by intestacy. Which killers?

What proof is needed?

Answer 157

those who feloniously and intentionally kill the decedent.

1. Conviction (includes guilty plea) is conclusive
2. In all other cases, probate court determines guilt by a preponderance of the evidence.

Question 158

What is the consequence of finding that the killing was felonious and intentional?

Answer 158

1. Killer is deemed to have predeceased the decedent, and the anti-lapse statute does not apply.
   * Killer does not take and the issue of the killer do not take.

Question 159

What happens if one joint tenant fenloniously an dintentionaly kiils the other joint tenant?

Answer 159

1. There is a severance of the joint tenancy so that the killer does not have a right of survivorship.
2. Killer does not lose his or her 1/2 interest in the property.

Question 160

What happens if a beneficiary feloniously and intentionally kills the insured?

Answer 160

The killer beneficiary does not take any benefit under the insurance contract.

Question 161

In intestate succession, how does community property, quasi community property, and separate property pass to a surviving spouse or domestic partner?

Answer 161

1. community property: surviving spouse or domestic partner inherits decedent’s 1/2 of the ocmmunity property.
   • Surviving spouse already owned 1/2 of the communitiy property, so now she has 100%.
2. Quasi-community property: same as CP
3. Separate Property:
   • If D leaves no issue, parents, brother or sister, or issue of a deceased brother or sister, all to surviving spouse or domestic partner
   • If D is survived by one child, or issue of a predeceased child, 1/2 to spouse and 1/2 to child or child’s issue.
   • If D is survived by 2 or more children, or issue of predeceased children, 1/3 to surviving spouse or domestic partner and 2/3 to the children or their issue.
   • If D is survived by no issue, but leavs parent or parents or their issue, then 1/2 to parent or parents or their issue, 1/2 to surviving spouse.

Question 162

What happens in intestate succession if intestate leaves no surviving spouse or domestic partner?

Answer 162

1. issue
2. parents
3. issue of parents
4. grandparents
5. issue of grandparents
6. Issue of a precedeased spouse or d,p.
   • a spouse/dp who died while married to the
   decedent.
7. next of kind
8. parents of a predeceased spouse or domestic partner: former in-laws
9. issue of parents of a preceased spouse
10. escheat (state of CA)

Question 163

Whenever issue take by intestacy, or if a will or trust provides for isseu to take without specifiying the manner, they take in the manner provided in Section 240 of the Probate Code. This means:

Answer 163

1. Issue of the same degree take “per capita” or equally and in their own right.
   •E.g. X (intestate) has children A,B, and C. and they are all alive at X’s death. EAch child takes 1/3, per capita, meaning each takes equally and in his or her own right.
2. Issue of more remote degree take “per capita with representation”

• Under section 240, we make our distribution (1) at the first level someone is living and give shares to all living people at that generation, and (2) to deceased members of that generation who leave issue.
• E.g X has 2 children: A and B. Both predecease X. A leaves child C, who survives X. B leaves children D and E. D survives X, but E predeceases X. E leaves children F and G, both of whom survive X.

Because no one is alive at A and B’s level, we drop down to C’s level to begin making our
distribution. C is alive, as is D. So we allocate a share for C and a share D. We also allocate a share for E because, while E is dead, E has left issue, F and G. Thus, we allocate a total of three shares: to C, D, and E. Thus, we give: 1/3 to C; 1/3 to D; and 1/3 for E, whose share will be split between F and G (1/6 each). C and D each take
1/3 per capita (in their own right), while F and G step into the shoes of E and take E’s share by right representation.

Question 164

If a will or trust calls for a distribution “per stirpes” or “by right of representation,” or by “representation,” we make a distribution differently. How?

Answer 164

1. Distribute per Section 246 of the CA Prob. Code
2. Make the distribution at the first generation or first level, even if everyone is dead, so long as they left issue. The issue then step into the shoes of tehir predeceased ancestor.

• E.g X has 2 children: A and B. Both predecease X. A leaves child C, who survives X. B leaves children D and E. D survives X, but E predeceases X. E leaves children F and G, both of whom survive X.
• Make a distribution at the first level even though everyone is dead.
• thus, we allocate a share for A and a share for B: CA, threfore takes 1/2 while D and E split 1/2 (each take 1/4). F and G then split E’s 1/4 share between them. Thus, at the end, C takes 1/2, D takes 1/4, and F and G split 1/4 (1/8 each) all taking per stirpes.

Question 165

How are adopted children treated in the CA probate code?

Answer 165

An adopted child is always treated as a natural child of the adopting parents.

The adoption severs the relationship of the adopted child’s natural parents.
• Exception; The relationship to the natural parents is not severed if the adoption is by the spouse or domestic partner of the natural parent, or afet the death of either of the natural parents.
• H1 marries W. They have C. H1 dies. W marries H2. H2 adopts C. C inherits not just from W and H2, but from H1’s line too.

Question 166

When are stepchildren or foster children treated as adopted?

Answer 166

If 3 elements are satisfied:
1. rel’p began during child’s minority
2. continued throughout the parties’ lifetimes; and
3. it is estalblished by clear and convincing evidence tha tthe stepparent or foster parent would have adopted but for a legal barrier.
• E.g. biological parent does not give consent to adopt.

DAN!

Question 167

What is equitable adoption?

Answer 167

Adoption by estoppel. Arises when the parties hold themselves out as parent and child.

Question 168

T/F: In CA, marital status of the parents is irrelevant.

Answer 168

True: the key is whether a parent-child relationship existed, irrespective of marital status.

Question 169

In a domestic partnership, a parent-child relationship is established as to the non-birthing partner by means of one of several presumptions:

Answer 169

1. a child bron during the domestic partnership is presumed to be the child of the non-birthing domestic partner
2. If the non-birthing domestic partner and the birthing domestic partner formed (or even just attempted to form) a domestic partnership in a lawful manner AFTER the child’s birth and:
   • the non-birthing d.p. is named on the birth certificate
   or
   • the non-birthing partner makes a voluntary promise to pay child support of is ordered to do so by a court, then a parent-child relationship is presumed to be established between the child and the non-birthing domestic partner.

Question 170

Half-bloods. What does it mean? How treated under law?

Answer 170

Relatives who have onl 1 common parent and not 2. Half-siblings.

Relatives of the half-blood inherit the same as the whole blood.

Question 171

Can posthumous children take under the estate? What are posthumous children>

Answer 171

1. Posthumous child is conceived during the T’s lifetime but born after T’s death.

Posthumous children are deemed heirs of the intestate and beneficiaries of the T’s will.

Question 172

What is the rule of lapse?

Answer 172

If the beneficiary does not survive the T, beneficiary’s gift lapses, or fails. Thus, if a gift lapses, unless a contrary intent is expressed in the will, the gift falls into residue, if there is one; if it is already part of the residue, it goes to other co-residuary devisees. Otherwise, the gift goes by intestacy.

Question 173

What is CA’s anti-lapse statute?

Answer 173

Applies only if the devisee who predeceased the T was “kindred” (blood relative) of the T, or kindred of a surviving, deceased or former spouse or domestic partner of teh T, and this predeceased devisee leaves issue. In such case, the issue of that predeceased devisee will step into the shoes of that predeceased devisee.

E.g.: T makes a devise to his brother and his brother predeceases T. In the absence of a contrary provision in teh will, the gift to the brother will not lapse but go to the issue of the brother.

Question 174

T/F: For the anti-lapse staute to apply, devisee must be kindred of teh testator or testator’s spouse or domestic partner–but the devisee cannot be the spouse or the domestic partner.

Answer 174

True!

Question 175

T/F: The issue of the predeceased devisee who take under the anti-lapse statute take in themanner provided in Section 240.

Answer 175

True: those of the same degree take per capita and those of more remote degree take by per capita with representation.

Question 176

T/F: In CA, both the rule of lapse and anti-lapse statute applies to wills and to revocable trusts.

Answer 176

True.

Question 177

T executes a will devising Blackacre “to my three children.” At the time the will was executed, T had three children, A, B and C. After T’s will is executed, C predeceases T. C leaves children C1 and C2. Under CA’s anti-lapse statute, what happens?

Answer 177

C’s gift does not lapse; rather C1 and C2 take C’s devise. Thus, A gets 1/3, B gets 1/3, and C1 and C2 take C’s 1/3 (C1 and C2 each taking 1/6).

Question 178

What is the Uniform Simultaneous Death Act?

Answer 178

If the devolution of property is dependent on one person surviving another, and it cannot be determined by clear and convincing evidence who survived whome, then it is deemed the one person did not survive the other.

Question 179

Testator and devisee die under circumstances of simultaneous death, a plane crash. If you cannot establish by clear and convicing evidence that devisee survived T (even for a second), then what happens?

Answer 179

The Uniform Simultaneous Death Act provides that devisee is deemed to have predeceased the T. Thus, the devisee will not take. The gift will either lapse or be distributed under the anti-lapse statute.

Question 180

A and B are joine tenants with right of survivorship and under circumstances of simultaneous death: you cannot tell by clear and convicing evidence who survived whom. What happens?

Answer 180

Sever teh joint tenancy. 1/2 the joint tenancy property goes tot A’s estate and 1/2 the joint tenancy property goes to B’s estate.

Question 181

Spouses or DPs have wills and own community property or quasi community property and die under circumstnaces of simultaneous death. In such case what happens to the commuity property?

Answer 181

1/2 of the CP will be distributed through one spouse’s estate, the other 1/2 through the other spouse’s estate.

Question 182

A life insurance policy and the insured and beneficiary die under circumstances of simultaneous death. What happens?

Answer 182

If it cannot be established that beneficiary survived teh insured, then the beneficiary is deemed not to have survived the insured:

1. see if there is an alternative beneficiary named
2. If there is no alt. beneficiary, the policy proceeds are paid to the insured’s estate: to the residuary devisees in the will if there are any, but if none, the proceeds will go to the insured’s heirs.

*But note: If the policy premiums are paid for with CP or QCP and the insured and beneficiary are spouses or domestic partners, then 1/2 the proceeds go to the hsuband’s estate, and 1/2 go to teh wife’s.

Question 183

What is the 120 hour rule?

Answer 183

For any heir to take, the heir must survive the intestate by 120 hours. If it cannot be determined by clear and convincing evidence that the heir has survived the intestate by 120 hours, it is deemed that the heir did not survied the intestate, and the heirs are determined accordingly. This 120 hour rule does not apply if the property would escheat.

Question 184

What is after-acquired property?

Answer 184

Property acquired after the will was executed.

E.g. In 1990 T executes a will leaving, “All of my estate to Mary.” At the time the will was executed, T’s net worth is $1000. When T dies in 2003, T has a net worth of $1 million. Because a will can dispose of after0acquired property, Mary will take the full $1 milliion.

Question 185

T/F: A will passes all property the testator owned at death, including after-acquired property.

Answer 185

True

Property acquired after teh will was executed.

E.g. In 1990 T executes a will leaving, “All of my estate to Mary.” At the time the will was executed, T’s net worth is $1000. When T dies in 2003, T has a net worth of $1 million. Because a will can dispose of after0acquired property, Mary will take the full $1 milliion.

Question 186

T/F: STock dividends or splits paid during T’s lifetime go to the beneficiary if the stock is owned by T at T’s death.

Answer 186

True.

E.g.: T devises 100 shares of Chevron stock to beneficiary. Before T dies, Chevron dclares a stock dividend. Beneficiary gets the 100 shares and teh stock dividends.

Question 187

What happens if there is an increase after T’s death and during probate?

Answer 187

1. Specific devises, all increase goes to the beneficiary
   • stock dividends
   • stock splits
   • rents
   • cash dividends
   • interest on indebtedness
2. As a general rule, general devisees do not receive any increase.
   • Exception: General pecuniary gifts ($100 to A) earn interest on such gifts not distributed 1 year after T’s death.
   •E.g. If T died Jan. 1, 2005 and the estate was not distributed until June 30, 2006, general devisees would receive interest for 6 mos. Interest received is a formula based on the legal rate.

Question 188

What is abatement?

Answer 188

The process by which certain gifts are decreased.

Question 189

When does abatement arise?

Answer 189

1. When it is necessary to pay for the share of the omitted child or omitted spouse or omitted domestic partner
   •When there is an ommitted child/ spouse/ DP, the gifts of the devisees have to be decreased to come up with the statutory share of the ommitted child/spouse/partner.

Question 190

What is the order of abatement for ommitted chilren, ommitted spouses and omitted dps?

Answer 190

1. First abate property not passing by the decedent’s will or revocable inter-vivos trust.
2. Then abate from all beneficiaries of T’s will and revocable inter-vivos trust pro rata, in proportion to the value of the gift received.
   E.g. An estate is valued at $90,000. T had 3 chilren: A, B, and C. A and B were provided for in the will and given $45,000 each. Child C was pertermitted. C’s statutory share is $30,000 (1/3 of $90,000). A and B will have their gifts abated by $15,000 each.

Question 191

What is the abatement exception for specific gifts?

Answer 191

the court can exempt the specific gift if abating the specific gift would defeat the obvious intention of the testator. This obvious intention must appear from the language in which the specific devise is created, or from teh general terms of the will/trust.

Question 192

T/F: In order of abatement, there is no favoring of relatives over non-relatives.

Answer 192

True.

Question 193

T/ F order of abatement for omitted children/spouse/dp is the same as the order of abatement to pay off general debts of the decedent.

Answer 193

False! ***

Order to pay off general debts:

1. intestate property
2. residuary gifts
3. general gifts to non-relatives
4. general gifts to relatives
5. specific gifts to non-relativs
6. specific gifts to relatives
   * to the extent they can be satsified from the designate fund, demonstrative gifts are treated as specific gifts.

Order of abatement for omitted children/spouse/dp

1. property not passing by decedent’s will or revocable inter-vivos trust
2. abate from all beneficiaries of T’s will and revocable inter-vivos trust pro rata, in proportion to the value of the gift received.

Question 194

What is exoneration? What is the common law rule v. the CA rule?

Answer 194

Exoneration= the debt is extinguished

Common law rule = If T devised a specific gift subject to an encumbrance (e.g. mortgage) for which testator was personally liable, the executor was required automatically to pay off the debt before passing the property to the beneficiary.

CA rule: debt is not automatically exonerated.
In CA, the devisee takes the specific gift subject tot eh encumbrance, unless the T’s will states that the specific gift is to be exonerated. Moreover, a general direction “to pay all my just debts” is not sufficient to exonerate. If the gift is exonerated, in the absence of a contrary intention in the will, other specific gifts do not abate.

Question 195

What is a gift causa mortis?

Answer 195

A gift made in contemplation of imminent death.

Question 196

What property can be the subject of a gift causa mortis?

Answer 196

personal property only. No real property

Question 197

For a gift causa mortis, the donor must make _______ of the property to the donee. What are the 3 forms of _________?

Answer 197

delivery

1. actual/ manual delivery: the corpus itself is transferred to donee. $100 cash, eg.
2. Symbolic delivery: something representative of the corpus is given to the donee. Typically it is a writing evidencing ownership.
   
   • E.g. Cash is not available for a manual delivery, but giving a donee a bank document evidencing ownership of the account.
3. Constructive delivery:
   •Common law view: What is given to the donee is a key, that unlocks a bos or room, in which is located the corpus, which is too big or bulky for a manual delivery. Key can be literal or figurative (treasure map).

• Modern view: a constructive delivery will be found whenever the donor has done everything possible to effectuate a delivery, and there is no issue of fraud or mistake.

Question 198

A gift causa mortis is ____________, if the donor survives the peril.

Answer 198

revoked by operation of law.