Interpretation, Conflicts, Ks

Question 1

Choice of Laws for Personal Property?

Answer 1

Personal property = decedent’s domicile

Question 2

Choice of Laws for Real Property?

Answer 2

Real property = property’s domicile

Question 3

CA Probate Code § 6113

Answer 3

CA Probate Code § 6113 - under CA law, a will is valid and admitted into probate if it:

(1) complies w/ CA law
(2) complies w/ law of state where executed; or
(3) complies w/ law of state where domiciled at execution

Question 4

Choice of Laws overview

Answer 4

Personal property = decedent’s domicile

Real property = property’s domicile

CA Probate Code § 6113 - under CA law, a will is valid and admitted into probate if it:

(1) complies w/ CA law
(2) complies w/ law of state where executed; or
(3) complies w/ law of state where domiciled at execution

Question 5

What types of Ks are there related to wills?

Answer 5

• Ks to make or not to revoke wills
• joint and mutual wills
• will substitutes
• remedies

Question 6

Contracts to make or not to revoke wills

Answer 6

(1) Contract law governs

(2) Proof of Contract established by (if made after 1/31/2000)
- will/other instrument sets forth material provisions of K
- express reference to K in will/other instrument
- writing signed by decedent evidencing K; or
- clear and convincing evidence
• agreement between decedent and promisee
• agreement between decedent and 3d party for claimant’s benefit

(3) Enforceable upon decedent’s death, not on breach
exception: fraud

Question 7

Joint & Mutual Wills

Answer 7

Definitions
• Joint wills = wills of 2+ ppl executed on same paper
• Mutual wills = separate wills by 2+ ppl that contain provisions for reciprocal benefits
• Joint & Mutual wills = wills of 2+ ppl executed on same paper that contain provisions for reciprocal benefits

No presumption of K to make or not to revoke will
- the execution of a joint/mutual/joint & mutual will DOES NOT create a presumption of a K to make or not to revoke will

Question 8

Gifts Causa Mortis

Answer 8

Defintion = gift made in contemplation of death

Requirements:

(1) donor must fear impending or imminent death
(2) personal property only
(3) donative intent
(4) delivery
- actual
- symbolic
- constructive
(5) acceptance =
- conditional & revocable
- donor survives peril = revoked by operation of law

Question 9

Totten Trust (Tentative Bank Account Trust

Answer 9

Definition = revocable trust composed of savings account, essentially a payable-on-death bank account

• named beneficiary receives the remainder of an account at the time of the trustee’s death
• the bank account depositor serves as trustee and retains full control of the money in the account during his/her lifetime

Revocable by

• withdrawal of funds;
• act manifesting intent to revoke; or
• contradictory will

Question 10

Remedies for Breach of Will Contracts

Answer 10

(1) damages
(2) specific performance
(3) constructive trust = devisee would serve as the constructive trustee