FIRST CONCEPT: INTENT

Question 1

What are the 4 issues of intent?

Answer 1

Capacity
Insane delusion
Fraud
Undue influence

Question 2

How much capacity do you need to make a will?

Answer 2

The capacity to make a will is the lowest capacity recognized in law.

Question 3

At the time of execution, testator must satisfy four elements for capacity, what are they?

Answer 3

[1] Testator must be at least 18 years of age.
[2] Testator must be able to understand the extent of her property.
[3] Testator must know the natural objects of her bounty: (spouse or domesteic partner, issue, parents, and those whose interests are affected by the will.)
[4] Testator must know the nature of her act

Question 4

“Testator must know the nature of her act” what does that mean?

Answer 4

she needs to know she is signing a will, but doesn’t need to know the legal technicalities

Question 5

What is the consequence of not having capacity?

Answer 5

[1] the entire will is invalid

[2] Property, therefore, will pass by intestate succession.

Question 6

What is the effect if the testator had a prior will before she, without capacity, executed a subsequent will that revoked the first? why?

Answer 6

If testator had a valid prior will that was purportedly revoked by a second will, (the one for which testator did not have capacity), then the first instrument will be probated because if testator did not have capacity, the second will could in no way have revoked the first.

Question 7

A will can also be attacked if at the time of execution the testator was suffering from an insane delusion. Four elements needed to establish testator was suffering from an insane delusion, what are they?

Answer 7

[1] T had a false belief
[2] That false belief was the product of a sick mind
[3] There is no evidence to support the belief, not even a scintilla of evidence.
[4] Delusion must have affected testator’s will.

Question 8

What are the consequences of finding an insane delusion? (also where would the corpus go?)

Answer 8

[1] Only that part of the will that is 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 9

What is the residuary gift?

Answer 9

The residuary gift is that part of the estate not otherwise expressly disposed of in the will.

Question 10

the will reads, “Blackacre to A, Whiteacre to B, and the residue to C.” What is C?

Answer 10

C is the residuary devisee

Question 11

What are the 5 elements to establish fraud in wills?

Answer 11

[1] There 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 12

What are the three types of fraud on the bar exam?

Answer 12

[1] Fraud in the execution
[2] Fraud in the inducement
[3] Fraud in preventing testator from revoking the will

Question 13

What is fraud in the execution? (what are the 2 scenarios?)

Answer 13

[1] Someone forges T’s signature to a will
[2]Testator is given a document to sign that purportedly is non-testamentary in nature, but in fact it is, and testator signs it.

Question 14

What is the Consequence of finding fraud in the execution? What happens to the corpus if there is no prior will, what happens if there is a prior valid will?

Answer 14

the entire will is invalid

the property passes by intestate succession, unless there is prior will that was validly executed.

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 15

What is fraud in the inducement?

Answer 15

he wrongdoer’s representations affects the contents of T’s will

Question 16

What is the Consequence of finding fraud in the inducement?

Answer 16

only that part of the will affected by the inducement is invalid

Question 17

If the court does find fraud in the inducement what 3 options does the court have for that part of the corpus that is affected by fraud in the inducement?

Answer 17

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 remedy (see trusts lecture for a fuller discussion of constructive trusts).

Question 18

What is a constructive trust a remedy for?

Answer 18

A constructive trust is a remedy to prevent fraud or

unjust enrichment.

Question 19

What is Fraud in preventing testator from revoking a variation of?

Answer 19

This is a variation of fraud in the inducement.

Question 20

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

Answer 20

the court will not probate the will and thus the property will go to the heirs.

the court also will decree that the heir is a constructive trustee who has one duty: to transfer the property to the intended beneficiary as determined by the court.

Question 21

Testator’s will leaves everything to son, but testator later changes her mind and wants to leave everything to charity. Due to son’s fraud (the lie that the charity is being investigated by the FBI) testator does not revoke the will. Because of the fraud, there is no revocation. What type of fraud is this?

Who will get the property by what remedy? (who is the constructive trustee?)

Answer 21

Fraud in preventing testator from revoking

Here, in the hypo above, son is a constructive trustee and charity gets the property via the constructive trust remedy.

Question 22

Son learns that testator is going to soon execute a will leaving all of her property to a charity. The son approaches testator and states, “Did you hear that the FBI is investigating that charity for cheating elderly citizens out of their savings?” The son knows that this is a lie, and is doing so because the son wants testator to leave nothing to charity and everything to the son, and this is exactly what happens: Son gets everything and the charity gets nothing. What type of fraud is this?

Answer 22

Fraud in the inducement

Question 23

Testator is given a document to sign,
purportedly a power of attorney, but in fact it is a
will, and testator signs it.. What type of fraud is this?

Answer 23

Fraud in the execution.

Question 24

What is the definition of undue influence in wills?

Answer 24

testator’s free agency is subjugated

Question 25

In what 3 ways can you establish undue influence?

Answer 25

[1] Prima Facie Case
[2] Case Law Presumption
[3] Statutory Presumption

Question 26

What are the 4 elements to establish undue influence under Prima Facie case?

Answer 26

[1] Susceptibility: Testator has a weakness such that he is able to have his free will subjugated. The weakness can be anything
[2] Opportunity: the wrongdoer had access to the testator.
[3] Active participation: it is the wrongful act that gets the gift. .
[4] An unnatural result: the wrongdoer is taking a devise, and this person ordinarily would not be expected to take a devise.

Question 27

T’s employee, Phil blackmails T so that the Phil gets everything and T’s family gets nothing. What is this an example of? What method do you use to establish this?

Answer 27

Phil being an asshole. this is undue influence that can be established in a prima facie case

Question 28

What are the 3 elements for proving undue influence under the Case Law Presumption method?

Answer 28

[1] A confidential relationship exists between testator and the wrongdoer.
[2] Active participation
[3] An unnatural result

Question 29

What 6 relationships has CA recognized as a confidential relationships for purposes of proving undue influence under the case law presumption method?

Answer 29

1. attorney client
2. doctor patient
3. guardian-ward
4. clergy person repentant
5. trustee beneficiary
6. In addition, in California, a confidential relationship arises whenever one person reposes trust in another. Thus, a confidential relationship can exist between two close friends.

Question 30

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

Answer 30

only that part of the will affected by the undue influence is invalid.

Question 31

If a court finds undue influence (by prima facie case or by case law presumption) what will happen to that part of the will affected by the undue influence that is invalid?

Answer 31

(the court will choose the remedy which gets the best result)
The part affected goes to:
[a] The residuary devisees if any, or, if none;
[b] To the heirs at law by intestate succession; or
[c] Via constructive trust remedy:

Question 32

Under the constructive trust remedy what will happen to the tainted part of the will (if found by undue influence, by prima facie case or by case law presumption)?

Answer 32

The tainted part of the will goes to the residuary devisees, if any, or if none to the heirs at law. Simultaneously, the residuary devisees or heirs are made constructive trustees (on the ground of preventing unjust enrichment) who have only one duty: to transfer the property to the intended beneficiary.

Question 33

How do you distinguish undue influence form fraud in the inducement?

Answer 33

[1] Fraud: you have a lie
[2] Undue influence: 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 34

How do you prove undue influence by statutory presumption?

Answer 34

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

Question 35

Who are the list of persons under California’s Statutory Presumption of Undue Influence?

Answer 35

[a] The person who drafted the instrument; or
[b] A person in a fiduciary relationship with the transferor (e.g. a trustee or lawyer) who transcribed the instrument or caused it to be transcribed; or
[c] 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; or
[d] A person who is a spouse, domestic partner, or blood relative related within the “third degree” of any person described in [a] through [c], above; or
[e] A person who is a cohabitant or employee of any person described in [a] through [c], above;
[f] A partner, shareholder, or employer of a law firm in which the drafter has an ownership interest.

Question 36

Who is the statutory presumption of undue influence conclusive against in California wills?

Answer 36

the person who drafted the instrument, or if the gift is to someone who is related to or associated with the drafter, as described in sections.

Question 37

Who is the statutory presumption of undue influence rebuttable as to whom in California wills?

Answer 37

the statutory presumption is rebuttable by clear and convincing evidence with respect to a donative transfer to a fiduciary or care custodian

Question 38

The statutory presumption does not apply to who?

Answer 38

[a] A donative transfer to a person who is the spouse, domestic partner, or a cohabitant of the transferor, or to a person related by blood, within the “fourth degree,” to the transferor (e.g. caregiver is transferor’s spouse); or
[b] 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 “fourth degree,” to the transferor (e.g. drafter is transferor’s adult child); or
[c] 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; or
[d] A transfer that does not exceed $5,000, if the estate is over $100,000 (i.e., a “small” gift when there is a “big” estate)

Question 39

What are the consequences of finding undue influence under the statutory presumption?

Answer 39

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.

Question 40

If the court finds undue influence under the statutory presumption what happens to the lapsed gift?

Answer 40

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 41

What is a care custodian?

Answer 41

a person who provides health or social services (e.g., administration of medicine, wound care, cooking, assistance with hygiene, shopping, or companionship) to a dependent adult.

Question 42

Does the term care custodian apply to those that provide care without compensation? (under what circumstances?)

Answer 42

The term does not include a person who provided services without compensation if the person had a personal relationship with the dependent adult at least 90 days before providing those services.

Question 43

What is a dependent adult?

Answer 43

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

Question 44

“Degrees of relationship” from a transferor what is the first degree?

Answer 44

children, parents

Question 45

“Degrees of relationship” from a transferor What is the second degree?

Answer 45

grandparents, grandchildren, siblings

Question 46

“Degrees of relationship” from a transferor What is the third degree?

Answer 46

great-grandparents, great-grandchildren, aunts and uncles, nephews and nieces

Question 47

“Degrees of relationship” from a transferor What is the fourth degree?

Answer 47

grand nephews and nieces, first cousins, great aunts and uncles

Question 48

T’s lawyer drafts the will and the devisee is the lawyer or the lawyer’s family. what do you do?

Answer 48

[1] Invalidate the gift on three theories of undue influence:
[a] Prima facie case undue influence
[b] Case law presumption of undue influence
[c] Statutory presumption of undue influence
[2] Discuss all three on the bar exam