Contracts relating to wills

Question 1

Contracts to not revoke or make a will

Answer 1

1. a contract to make, not make, or revoke a will is valid
   i. governed by contract law
   ii. testamentary formalities are not needed
2. a contract to make or not revoke must be proven by any of:
   i. signed writing evidencing the contract
   ii. provisions of a will or other instrument stating the contract’s material provisions
   iii. express reference in a testamentary instrument to a contract, and extrinsic evidence proving its terms (express reference + parol evidence)
   iv. clear and convincing evidence of the agreement bw claimant and decedent
   a. or clear and convincing evidence of the agreement bw decedent and another person in which claimant is the 3P beneficiary
   v. a promise to claimant that is enforceable in equity (estoppel, quasi-contract)
   a. or a promise to a 3P where claimant is 3P beneficiary that is enforceasble in equity
3. the cause of action accrues when the decedent dies
   i. no remedy during testator’s life, bc testator can always comply during their life
   ii. exception: cause of action during decedent’s lifetime if decedent would be committing a fraud (i.e. injunction of acts that would cause irreparable harm)
4. remedy: the contract is a cause of action against promisor
   i. can sue the estate for damages or specific performance
   ii. cannot be used to oppose the probate of a properly executed will if one is made (where K was to not make a will)
   iii. if there is harm, the court imposes a constructive trust upon the appropriate beneficiaries under the will (in favor of the non-breaching contract parties)
   a. relief if there is anticipatory repudiation by testator after substantial performance by promisee

Question 2

Joint and Mutual wills

Answer 2

1. joint will: a single will executed by multiple testators, intended to be the will of each
2. mutual wills: separate wills executed by different testators that have similar or reciprocal provisions (ex. A: if I die I leave to be, B: if I die I leave to A)
3. revocable during a testator’s life
4. the execution of a joint or mutual will does not create a presumption that the wills were made pursuant to a promise not to revoke
   i. could be evidence in conjunction with other facts

Question 3

Waiver of Rights by Surviving Spouse or Domestic Partner

Answer 3

1. a spouse/partner may waive the right to receive property from other spouse or anything else
   i. applies to inheritance by intestacy, will, non-probate transfer
   ii. can waive right to be appointed executor, administrator
   iii. can waive right to elect against decedents will
   iv. can waive right to take an omitted spouse or partner’s share
2. usually occurs when the testator forces the spouse to give up her share
3. requirements:
   i. signed writing by the waiving spouse or partner
   ii. full disclosure of benefitting spouse’s financial status to the waiving spouse
   iii. waiving spouse must have independent legal counsel
4. exception: enforceable even without disclosure of financial status or independent counsel if:
   i. spouse knew or should have known of testator’s finances, or
   ii. waiver was fair
5. summary: waiver if
   i. signed writing + financial disclosure + independent counsel, or
   ii. signed writing + actual or constructive knowledge of financial status
   iii. signed writing + fair
6. unenforceable if unconscionable

Question 4

Family protection: restrictions on testamentary dispositions - Rights of surviving spouse or domestic partner - separate and community property

Answer 4

Separate Property
1. separate property: property acquired before marriage (or domestic partnership), or acquired during marriage by gift, bequest, devise, or descent, together with the rents or profits thereof

Community Property

1. all property that is not separate property
2. only half is subject to testamentary disposition, other half belongs to surviving spouse, unless agreed otherwise
3. widow’s election: a surviving spouse may be required to elect between taking under a will (which disposes of both spouses’ community and quasi-community property) or taking against the will, taking the half-share of community property
   i. arises whenever the testator attempts to dispose of more than half of their community or quasi-community property
   ii. ambiguity is construed as taking against the will
   iii. if a widow that elects to take the community property, widow must renounce all benefits under the will

Question 5

Family protection: restrictions on testamentary dispositions - Rights of surviving spouse or domestic partner - quasi community property

Answer 5

1. all personal property wherever situated, and all real property situated in CA, if acquired by decedent while domiciled elsewhere that would have been community property if decedent has been domiciled in CA at time of acquisition
   i. different from real community property bc living spouse does not own a half-interest in the property during decedent spouse’s life, and cannot make a testamentary disposition of it in her own will

v. notes:
a. only for transfers made while decedent was domiciled in California
b. no effect on insurance, joint annuities, or pensions payable to a third party

Question 6

Family protection: restrictions on testamentary dispositions - omitted children

Answer 6

3. terms
   i. pretermission: an accidental omission of person not yet in being
   ii. pretermitted child: a child born or adopted after all testamentary instruments are executed, and who is not provided for in any testamentary instrument
   iii. testamentary instruments: wills, codicils, revocable inter-vivos trust established during testator’s life
4. California: if a defendant unintentionally fails to provide for a child born or adopted after the execution of all testamentary instruments, the child receives their intestate share
5. rule: a pretermitted child takes an intestate share of the estate (plus inter-vivos trusts).may require abatement.
   i. a pretermitted child must be born after the execution of all testamentary instruments\

ii. mistake exception: if testator’s mistaken belief that the child was dead or nonexistent at time of execution was the sole reason for the omission, the child born before the time of execution is still pretermitted
a. ex. a father who does not know the child exists

5. no pretermission if:
   i. the failure to provide for the child was intentional and the intent appears on the face of a testamentary instrument
   ii. the child was provided for by another transfer in lieu of a testamentary transfer, as evidenced expressly, shown by amount transferred, or any other evidence
   iii. the decedent has at least once child at the time of execution, and substantially all of the estate was devised to the other parent of the omitted child
6. pretermitted child’s share is taken from the portion not disposed of by will, and deficiencies are taken from all beneficiaries pro rata
7. bar tip: republication of a will by codicil can change a child’s status wrt pretermission
8. summary:
   i. pretermitted if born after (unless mistaken dead or nonexistent)
   ii. no pretermission if intentional, transfer in lieu, or to parent

Question 7

Family protection: restrictions on testamentary dispositions - Disinheritance

Answer 7

1. proof of intent to disinherit must be on the face of the will
   i. no extrinsic evidence admissible to show intent to disinherit
   ii. but extrinsic evidence can be used to show lack of intent to disinherit

Question 8

Family protection: restrictions on testamentary dispositions - Omitted spouse or domestic partner

Answer 8

1. a surviving spouse or domestic partner cannot be unintentionally omitted from a will or revocable trust
2. requires
   i. marriage or domestic partnership after execution of all testamentary instruments, and
   ii. the spouse is not provided for in the will or revocable trust
3. share:
   i. any inter vivos trust
   ii. statutory share of assets of decedent owned at death
   a. other half interest in community and quasi-community property (so now 100%)
   b. share of separate property equal in value to what the spouse would have received had the decedent not executed any testamentary instrument
   i) limitation: share cannot exceed 50% of the value of the separate property
   iii. may require abatement of other shares
   a. the surviving spouse’s intestate share is taken first from the portion of the estate not disposed of by will or trust, and any deficiencies are taken from other beneficiaries pro rata
4. exceptions:
   i. testator’s actual intent to not provide for spouse appears on the face of the instrument
   ii. the spouse was provided for by another transfer in lieu of a testamentary transfer, as evidenced expressly, shown by amount transferred, or any other evidence
   iii. a valid waiver exists
   a. written + (financial disclosure + independent counsel) or (knowledge) or (fair)

Question 9

Family protection: restrictions on testamentary dispositions - Termination of Marriage

Answer 9

1. if a marriage or partnership is terminated, the following are revoked as to the former spouse
   i. disposition made by the will
   ii. conferring power of appointment, or appointing executor, trustee, conservator, or guardian
   iii. non-probate transfers (except life insurance policies), joint tenancies, community property interests
2. property passes as if the former spouse had predeceased the decedent
3. revoked provisions are revived if the marriage or domestic partnership is revived and the will has not changed
4. does not apply if the will expressly provides otherwise (ex. even if my marriage terminates my spouse takes)
5. a legal separation is insufficient for dissolution, termination is needed

Question 10

Rights of surviving spouse or domestic partner - quasi community property – Forced share

Answer 10

2. Forced Share (Probate Code §101)
   i. one half of the decedent’s quasi-community property is taken by the surviving spouse
   ii. statute protects domestic partners moving from a common law state
   iii. the forced share is taken from beneficiaries either by the general rules of abatement (residuary, then general, then specific gifts), or by pro rata abatement (everyone chips)
3. interests renounced are sequestered to reduce the loss, as far as possible, to those who have suffered by the election

Question 11

Rights of surviving spouse or domestic partner - quasi community property – illusory transfers of community property and widow’s election

Answer 11

4. protection regarding illusory transfers of quasi-community property and widow’s election:
   i. general rule: an inter vivos transfers by the decedent (the acquiring spouse) of quasi-community property to a third party without consideration is allowed

ii. illusory transfer rule: an inter vivos transfer without consideration to a third party is prohibited if the transfer of the quasi-community is illusory and the partner invokes the widow’s election to take the property
iii. illusory if the transferring/acquiring spouse retains interest or control over the property:
a. ownership interest, a use, or co-tenancy
b. possession/enjoyment of rights/income from the property at at time of death
c. decedent has has power (alone or with any other person) to revoke, consume, or dispose of principal for decedent’s own benefit
d. decedent has right of survivorship over property held by 3P
iv. remedy: surviving spouse or domestic partner may require the transferee to restore half of the quasi-community property to the estate
a. the amount restored is one-half of the value of property if the property is retained, one-half of proceeds if sold, or one-half of value at time of transfer