California Wills

Question 1

Capacity (4)

Answer 1

MINIMAL CAPACITY

(1) at least 18
(2) understand extent of property
(3) understand natural objects of bounty (devisees)
(4) must know nature of act

Question 2

Consequence of lack of capacity

Answer 2

Entire will invalid

Question 3

Insane delusion (4)

Answer 3

(1) testator has false belief
(2) false belief was product of sick mind
(3) not even scintilla of evidence to support belief
(4) delusion affected testator’s will

Question 4

Consequence of insane delusion

Answer 4

Only that part affected by delusion invalidated

Question 5

Fraud (5) (wills)

Answer 5

(1) representation
(2) of material fact
(3) scienter
(4) for purpose of inducing action or inaction
(5) in fact induces the action or inaction desired

Question 6

Fraud in the exection

Answer 6

Forges testator’s signature –> entire will invalid

Question 7

Fraud in the inducement

Answer 7

Wrongdoer’s representations affect contents of will –> only part affected by fraud invalid

Question 8

Fraud in preventing testator from revoking will

Answer 8

Court will not probate will and it will go to heirs

Question 9

Undue influence

Answer 9

Testator’s free agency subjugated

Prima facie case: (1) susceptibility; (2) opportunity; (3) active participation by wrongdoer; (4) unnatural result

Case law presumption: (1) confidential relationship (i.e. attorney-client, doctor patient, etc.); (2) active participation; (3) unnatural result

Statutory presumption: gift to person who drafted will, care custodian, relative of those two categories

Impact: PF or CL –> invalidation of portions impacted;
SP –> gift lapses

Question 10

Mistake in content

Answer 10

Testator’s will names wrong beneficiary or makes wrong gift due to accidental omission or addition. Traditional rule allowed for no relief, but modern (2015) CA rule allows courts to reform or rewrite will to conform to testator’s intent

Question 11

Mistake in execution

Answer 11

Testator signs wrong will. Generally probated, unless reciprocal wills (wife-husband sign each others’ wills) in which case it will be reformed

Question 12

Mistake in description

Answer 12

Nothing fits a description or multiple things fit description. Modern CA: parol evidence to explain ambiguity. (Traditional rule only allowed parol evidence for latent, not patent, ambiguity.)

Question 13

Dependent relative revocation (mistake in validity of subsequent testamentary instrument)

Answer 13

If T revokes will or portion of will in mistaken belief that a substantially identical will or codicil effectuates intent, then revocation of first is conditional and dependent on second will effectuating T’s intent. If 2nd does not effectuate intent, 1st will was never revoked

Question 14

Pretermission (mistake regarding living children

Answer 14

Accidental omission of child born or adopted after will is executed –> takes an intestate share of estate.

Question 15

Integration of will (2)

Answer 15

(1) intent for papers in question to have been part of will

(2) papers must have been physically present at time of execution

Question 16

Incorporation by reference (4)

Answer 16

(1) document or writing
(2) in existence when will was created*
(3) clearly identified in will
(4) T intended incorporation (generally implied once establish 1-3)

*Doesn’t apply to list disposing of items of tangible personal property as long as (a) referred to in will, (b) writing dated and handwritten or signed, (c) writing describes items with reasonable certainty.

Question 17

Facts of independent significance doctrine

Answer 17

Allows courts to fill in the blanks to testator’s will with parol evidence that is trustworthy. Ask: even without this will, would this fact have existed?

Question 18

Intestate succession

Answer 18

CP / QCP –> decedent’s share goes to surviving spouse

SP –> all to surviving spouse if no other heirs; 1/3 or 1/2 depending on number of children

Question 19

Intestate inheritance to heirs

Answer 19

Per capita if all are of same degree of kinship, per capita with right of representation (equal shares at first generation at which there are living takers)

Question 20

Order of successors

Answer 20

(1) issue (kids); (2) parents; (3) issue of decedent’s parents

Question 21

Establishing nonmarital child’s relationship to father (3)

Answer 21

(1) presumption (attempts to marry, etc.)
(2) holding out child as own
(3) by judgment

Question 22

Simultaneous death

Answer 22

Is an issue, generally if can’t be established by clear and convincing evidence that heir outlived, legally predeceased

Question 23

Disclaimer (6)

Answer 23

(1) writing
(2) signed by disclaimant
(3) identify decedent
(4) describe interest being disclaimed
(5) state that there is a disclaimer and exetnt of it
(6) filed within reasonable time (~9 mos of learning of interest)

Question 24

Prohibited beneficiaries

Answer 24

(1) slayers (proof of killing by preponderence)
(2) elder abusers/neglecters
(3) aliens (common law only)

Question 25

Conflict of laws (wills)

Answer 25

personal property –> decedent’s domicile

real property –> law of situs

Question 26

Requisite formalities of attested wills (5)

Answer 26

(1) writing
(2) signed by T
(3) in presence of at least two witnesses
(4) witnesses must sign during T’s lifetime
(5) witnesses must understand doc is T’s will

Question 27

Holographic wills

Answer 27

Allowed in CA as long as signature and material provisions of will in T’s own handwriting

Question 28

Statutory will

Answer 28

(1) T fills in blanks and signs
(2) two witnesses must observe signing
(3) each witness must sign in presence of T

Question 29

Revocation by written instrument

Answer 29

Express revocation –> revoked by later valid will or codicil

Implied revocation –> revoked by implication from the terms of a subsequent instrument

Question 30

Revocation by physical act

Answer 30

Will burned, torn, canceled, obliterated, or destroyed with simultaneous intent to revoke

Question 31

Revocation by operation of law

Answer 31

New spouse –> may take intestate share of decedent’s estate

Dissolution of marriage –> old spouse cannot take (gift revoked)

Question 32

Ademption

Answer 32

Gift fails because it is no longer in the estate. California takes testator’s intent into consideration to avoid harsh effects of ademption

Question 33

Abatement

Answer 33

Process of reducing testamentary gifts in cases where the estate assets are not sufficient to pay all claims against the estate and satisfy all bequests and devises. (starts with intestacy gifts)

Question 34

Will substitutes

Answer 34

Nonprobate assets (life insurance, trusts, deeds, etc.). Pass to beneficiary or survivor.