Kaplan Wills Pgs 240-277

Question 1

Traditionally what was the definition of a devise and what was the definition of a bequest or legacy, and modernly what are the definitions?

Answer 1

• devise: only referred to RP
  – bequest: only referred to personal prop
  – modernly: devise is used for any property, real or personal, that is received as a testamentary gift

Question 2

What are the three things that are required for a will to be valid?

Answer 2

– the testator had to have had CAPACITY to execute a will
– the testator had to have had TESTAMENTARY INTENT
– the will must have been executed according to applicable FORMALITIES

Question 3

Who is exempt from the age requirement for making a will?

Answer 3

Emancipated minors

Question 4

A persons soundness of mind in order to make a will is presumed, but how can it be overcome?

Answer 4

By a preponderance of the evidence

Question 5

If a testator’s mental state is known to fluctuate between clarity and confusion, what is the presumption with regard to when he signed the will?

Answer 5

That it was signed during a time of lucidity

Question 6

How do you prove testamentary intent so that it will can be valid question

Answer 6

Just have to show that the testator actually intended to dispose of his property on death. It doesn’t require specific words, but he must use words to indicate a transfer of specify property on his death. Extrinsic evidence can also be used if this is vague about the circumstances surrounding the creation of the will.

Question 7

Who has the burden to show that a testator didn’t have testamentary intent to create a will?

Answer 7

This is on the party that is challenging the will

Question 8

If it is unclear whether a document itself was actually intended by the author to be a will, who has the burden to show that it was?

Answer 8

The proponent alleging that there was testamentary intent

Question 9

What is the timing for a testator to have testamentary intent?

Answer 9

It had to have been at the time of execution of the will

Question 10

What is the standard to prove undue influence regarding a will?

Answer 10

Lack of testamentary intent is only shown when the influence constitutes a pressure that overpowers the testator’s free will at the time the will was made

Question 11

What kind of things could be a problem for testamentary intent for a will?

Answer 11

– undue influence
– fraud
– mistake

Question 12

What happens when undue influence has been found regarding a will?

Answer 12

Dash if it just involves some provisions, those will be severed and the rest of the document will stay intact
– if the severance is impracticable, the entire wheel is invalidated

Question 13

What is the definition of fraud with regard to a will?

Answer 13

This is when another person deceives the testator regarding the true state of things while allowing the testator to act freely. A compromise is testamentary intense because the testator’s knowledge is corrupted

Question 14

How do you remember fraud in the execution and fraud in the inducement?

Answer 14

– Fraud in the execution: this is deception about the nature or contents of the writing. If a grandpa asked his grandson to make a will leaving his property equally to all four children, but the grandson rights will leaving everything to him, and has the grandpa sign it saying that he did what he was told to do
– fraud in the inducement: this is when there has been deception with regard to the actual procurement of the will. If Billy is already married and then purports to Mary Amy, and she makes a wheel that leaves everything to her husband Billy, she would not have made that bequest if she had known

Question 15

What are the elements of fraud with regard to a will?

Answer 15

– intentional misrepresentation of fact, opinion, intention, or law
– intent to induce someone to act or refrain from acting
– justifiable reliance
– resulting pecuniary harm

Question 16

What is the major difference between mistake and fraud?

Answer 16

The lack of intent on the part of the other person to deceive the testator

Question 17

What are the three categories of mistake with regard to a will?

Answer 17

Dash mistake in the execution
– mistake in the fact
– mistake in the inducement

Question 18

What is mistake in the execution of a will?

Answer 18

This is a mistake about the nature of the document. It can happen if you signed the wrong documents or something like that. Extrinsic evidence is admissible to show the mistake and the entire will is invalid because there’s an issue of testamentary intent. I.e.: if you had papers stacked on your desk and you signed a document that you thought was a contract but was actually a will, it will be invalid

Question 19

What is involved in mistake in the fact dumb question

Answer 19

This is a mistake in the language of the wheel itself. It might involve an erroneous identification of a beneficiary. If so, extrinsic evidence can be used to clarify the inconsistency, but it cannot be admitted to show a different intent. Mistaken affect him does not invalidate a will because it doesn’t affect testamentary intent. I.e.: if your wheel has many bequests to your daughters and one of them gives your baseball card collection to “sport“, extrinsic evidence can be used to show that was the nickname for your daughter Becky

Question 20

What is involved in mistake in the inducement?

Answer 20

This is a mistake about facts outside of the will that induce the testator to dispose of property a certain way. This might be a mistake about:
– the value of your property
– the amount of loans or advancements made to beneficiaries
– whether a relative of the testator is alive or dead.

The provisions of a will are not set aside for mistake in the inducement

Question 21

What is a conditional will?

Answer 21

When the testator expresses his intent that the will only take affect if a certain event happens. The language must be clear about the condition precedent and not just expressing a motive to write a will. I.e.: if you are preparing to have surgery tomorrow and you make a will that says, “if I die on the operating table tomorrow, I devise…” This is only valid if you die as a result of the operation

Question 22

What is an a tested will question

Answer 22

When they signed by the testator and verified by witnesses

Question 23

What counts for the testator signature on a will?

Answer 23

– The signature of the testator
– some other person in the testator’s present and by his directions signs the testator’s name
– a conservator pursuant to a court order to make a will

Question 24

If someone signed the document with something other than their signature, like a mark, what is required?

Answer 24

They must have the intent that that be their signature

Question 25

If a will is witnessed by a an interested witness, what is the presumption?

Answer 25

That the witness procured the devise by duress, menace, fraud, or undue influence

Question 26

If a wheel doesn’t have the proper witnesses, like one is interested, does that mean that the wheel is invalid question

Answer 26

No, as long as there is a clear and convincing evidence that at the time the testator signed well he intended it to be his work

Question 27

Can you introduce extrinsic evidence to determine if the requirements for an attestation were fulfilled question

Answer 27

Yes

Question 28

If there is a holographic well that doesn’t have a date on it and there is doubt about whether the holographic will came first or another will that had inconsistent provisions in it, what are you

Answer 28

The holographic wheel is invalid to the extent of the inconsistency, unless the time of execution is established to be after the date of execution of the other will

Question 29

If there is a will and then a later codicil, how is that all treated?

Answer 29

They are treated as one testamentary document that speaks from the date of the codicil

Question 30

What is the law that applies to a codicil?

Answer 30

The law that is in effect at the time of the republication

Question 31

Does a codicil replace an existing will?

Answer 31

No, it modifies it

Question 32

Can a testator alter a holographic will after he signs it, such as by making deletions or interlineations?

Answer 32

Yes and as long as the alteration is in the testator‘s handwriting, it operates to adopt the old date and signature

Question 33

What are the two things that are required if a will is revoked by a physical act?

Answer 33

• some act of destruction

– intent that the act revokes the will

Question 34

What is the difference between a joint will and a mutual will?

Answer 34

• joint will: one document that is executed by two or more testators when they all intend it to be a will for each of them
  – mutual: separate wills that are executed by two or more people that have reciprocal provisions for the distribution of assets

Question 35

If you execute a joint or a mutual will, does that create a presumption of a contract not to revoke the will?

Answer 35

No

Question 36

What is the act that authorizes pour over provisions in a will to transfer property to a trust?

Answer 36

Uniform testamentary additions to trust act [UTATA]

Question 37

When a court is construing a will, what is the preference that they give it?

Answer 37

A court will presume that the testator did not intend to die intestate and will give the interpretation that will prevent intestacy.

Question 38

If there is a latent ambiguity in a will, how the courts figure out what is intended?

Answer 38

– They first look within the four corners of the document to determine the testator‘s intent
– if that isn’t helpful, they can admit extrinsic evidence to resolve the ambiguity regarding what the testators probable intent was, but they will not include the testator‘s oral statements of intention

Question 39

If a provision in a will is clear and unambiguous, what is the rule with regard to extrinsic evidence?

Answer 39

It cannot be introduced to explain or contradict the terms

Question 40

What are two different ways that ademption by extinction can happen?

Answer 40

– Through an intentional act of the testator: gift or sale

– in voluntary circumstances: fire or theft

Question 41

Anti-lapse only applies when the beneficiary’s death occurred after the execution of the will, but what happens if the beneficiary died before the will was executed, but the testator didn’t know of the death?

Answer 41

Then anti-lapse still applies

Question 42

If a testamentary gift depends upon the priority of death of the beneficiaries, and it cannot be established by clear and convincing evidence that any beneficiaries survive the other, what happens?

Answer 42

The property is distributed to all beneficiaries in proportionately equal shares. I.e.: if you make a testamentary disposition of your property “to the survivor of my sons A, B, and C.“ If they all die in an accident together, the property passes equally to the estates of A, B, and C.

Question 43

What is a family allowance?

Answer 43

While a testator‘s estate is being administered, the surviving spouse, the minor children, and incapacitated adult children that were dependent on the testator are entitled to an allowance that is necessary for their maintenance. The idea is that it supplies them with necessary financial support before distribution of the estate. This allowance is given priority over virtually every other estate debt and it continues until the final distribution of the estate.

Question 44

After a testator dies, if you have custody of his or her will, what must you do?

Answer 44

You must deliver it within 30 days to the superior court and mail a copy to the named executor, or to a named beneficiary if the executor is unknown

Question 45

If a will refers to “a surviving spouse“ does that also apply equally to a domestic partner?

Answer 45

Yes

Question 46

What is involved in the table of consanguinity for a non-spousal share under California law if part of the intestate estate is not passing to a surviving spouse?

Answer 46

DECEDENT:
- descendants: children, grandchildren, great-grandchildren
– parents: brothers and sisters, nephews and nieces, grand nephews and nieces, great grand nephews and nieces
– grandparents: uncles and aunts, first cousins, first cousins once removed, first cousins twice removed, first cousins thrice removed

Question 47

How do you determine the degree of kinship with regard to California non-spousal share of an entire state of state?

Answer 47

Count the number of generations from the decedent back to the first ancestor the decedent has in common with the relative
– count the number down to the relative in question from the common ancestor
– the total number is the degree of kinship

I.e.: determine what the degree of kinship would be for a second cousin, count from the decedent to the ancestor in common which is the great grandparents. This goes from the decedents parents, to the decedents grandparents, to the decedents great grandparents and is 3. Then count from the great grandparents to the relation in question. So this goes from the great grandparents to the great uncles and aunts, to the first cousins once removed, and then to the second cousins. This is three more, so if you add those together that is six. Second cousins are the 6th° of kinship

Question 48

Under California law for a non-spousal intestate share, if a person is related to the decedent through two lines of relationship, how many shares is he entitled to?

Answer 48

One share, based on the relationship that would entitle him to the largest share

Question 49

What is involved in California’s per capita representation scheme with regard to the non-spousal share for intestacy?

Answer 49

The estate is a divided into as many equal shares as there are:
– surviving errors in the nearest degree of kingship, and
– deceased persons in the same degree who left issue that survived the decedent

Question 50

Under California law, parents cannot inherit from their child if one of three things happens, what are they question

Answer 50

Dash their parental rights were terminated
– they did not acknowledge the child
– they left the child during the child’s minority with no effort to support or communicate for at least seven consecutive years, continuing until the end of the child’s minority, with an intent to abandon the child

If these things happen, that is presumptive evidence of an intent to abandon

Question 51

Minors another legally incompetent beneficiaries can sue to enforce the trust through what?

Answer 51

Through a guardian ad litem

Question 52

What is the duty that co-beneficiaries and successive beneficiaries owe to each other?

Answer 52

Duty of loyalty

Question 53

What are the elements that are required to create an inter vivos trust?

Answer 53

Dash settler with capacity
– intent to create a trust
– formalities
– valid purpose
– ascertainable beneficiary [unless it is a charitable trust]
– trustee with active duties

Question 54

Would this create a valid trust “all future profits from stock trading to my friend Ron”?

Answer 54

No, because there isn’t a trust res since the future profits are too uncertain

Question 55

Would this create a proper trust? “Most of the money in my bank account to Johnny.“

Answer 55

No, because it is too indefinite to constitute a valid trust res

Question 56

What is a “Totten trust“?

Answer 56

This is when the settlor deposits money in a bank in the name of someone, in trust for someone else. I.e.: savings account trust. Usually the depositor has to sign a statement giving the name and residence of the beneficiary. The settlor can keep the bankbook and make withdrawals and doesn’t have to give notice to the beneficiary. For this reason, the trust is revocable until he dies, at which time the balance vests in the beneficiary. These do not have to comply with the formalities of a will.

Question 57

If the settlor withdraws or transfers all of the funds from a savings account trust, what does that do?

Answer 57

That is a revocation of the trust

Question 58

What is a custodial trust?

Answer 58

A trust that is created for the benefit of an individual that is or is likely to become incapacitated. In California the Uniform Transfers to Minors Act says that a settlor can transfer property in trust for the benefit of a minor, to a custodial trustee who manages and invests the property for the minor until he or she reaches the age of majority

Question 59

What is a supplemental needs trust question

Answer 59

This is a trust that is specifically designed to allow someone with a severe disability to collect a limited income from the trust without sacrificing eligibility for Medicaid or other forms of government assistance

Question 60

What are the major characteristics that distinguish a charitable trust from a private express trust question

Answer 60

Dash charitable purposes
– indefinite beneficiaries
– exemption from the rule against perpetuities
– exemption from the rule against accumulations
Dash use of the cypress doctrine

Question 61

Is it possible to have a trust for the care of an animal?

Answer 61

Yes, the court will appoint someone to enforce the terms if the trust doesn’t say who, it terminates when there’s no animal living anymore, and at that point any remaining funds in the trust are distributed as directed in the trust instrument or according to the will under a residuary clause