Pg 19

Question 1

If the transferee under a class gift died before the execution of an instrument and the testator knew it, what happens under California anti-lapse?

Answer 1

The deceased member of the class takes nothing

Question 2

If a testator has three brothers and one of them dies and has a son, and then the testator makes a will that says, “$10,000 to be shared by my brothers“, and the one that died is a protected transferee and has issue, what happens?

Answer 2

The gift is not saved for his child because the testator knew that that brother was dead when he made the will. If the testator knew that the beneficiary had already died when he executed the instrument, then that gift to that member of the class is void. If the testator wanted the deceased brother’s son to take, he should have left a gift to the son. Because he didn’t do that, it is assumed he didn’t want that

Question 3

How do you slayers work under California anti-lapse?

Answer 3

A slayer is someone that feloniously and intentionally kills the decedent, and he is not entitled to any benefit under the decedent’s will. AND if a gift to the slayer fails, the slayer’s issue cannot step into his shoes.

Question 4

What is good wording on an essay with regard to anti-lapse and slayers?

Answer 4

“Because he intentionally killed the testator, he cannot take his interest under the will due to the slayer statute. A is treated as if he pre-deceased the testator and his interest passes as if anti-lapse does not apply, so his issue do not take the gift either.”

Question 5

What happens under California anti-lapse if there has been a simultaneous death and it is not clear that the devisee survived the testator by clear and convincing evidence or for the time period specified?

Answer 5

The devisee is treated as if he predeceased the testator. But that does not stop his issue from taking his gift under anti-lapse. The only consideration that would apply is if the will contained a specific survivorship requirement that wasn’t met.

Question 6

If a will says, “To A, if he survives me by 30 days“ and A dies nine days later, what happens under California anti-lapse?

Answer 6

That is treated as an intention for anti-lapse not to apply, so the property would pass under the residuary or intestacy

Question 7

Under California anti-lapse is it possible to make a devise to an animal?

Answer 7

No, that gift would be void

Question 8

What is the essay approach for anti-lapse?

Answer 8

1) does anti-lapse apply? If not….

2) apply default rules

Question 9

If anti-lapse applies, what does it trump?

Answer 9

It trumps default rules for both individuals and class gifts

Question 10

On an essay, if you are trying to figure out if anti-lapse applies, what is the structure?

Answer 10

• is the failed devise to a PROTECTED TRANSFEREE?
  – does the protected transferee have SURVIVING ISSUE?
  – is there any CONTRARY INTENTION expressed to preclude anti-lapse?
  – is there ANOTHER REASON that anti-lapse would not apply?

Question 11

What is the first thing to ask if you’re trying to figure out if anti-lapse supplies?

Answer 11

If the person is a protected transferee. This means he is the kindred of the testator, or for California, is the kindred of a current, pre-deceased, or former spouse of the testator

Question 12

If the failed devise is not to a protected transferee, what happens?

Answer 12

Anti-lapse does not apply and instead the default rules apply

Question 13

After you determine that someone is a protected transferee for antilapse, what is the next thing you must determine?

Answer 13

That he has surviving issue to step into his shoes. This means direct lineal descendants

Question 14

If someone is a protected transferee but has no surviving issue to step into his shoes, what happens?

Answer 14

Anti-lapse does not apply, and instead the default rules apply

Question 15

What would be an example of a contrary intention that could be expressed to preclude anti-lapse?

Answer 15

An alternate beneficiary or a survivor requirement

Question 16

If a contrary intention is expressed that would preclude anti-lapse, what happens?

Answer 16

It is followed and anti-lapse does not apply

Question 17

What would be an example of a reason that anti-lapse would not apply aside from a contrary intention in the instrument?

Answer 17

If the testator knew that the member of the class gift was dead at execution, if the devise was to a slayer, etc.

Question 18

If there is some other reason that anti-lapse should not apply, what happens?

Answer 18

Default lapse rules apply

Question 19

When you’re dealing with the default rules for lapse, what is the structure of that?

Answer 19

– if an ALTERNATE beneficiary is provided for, that is followed
– determine if the gift is to an individual or a class
* individual: goes to the residue, and then intestate
* residuary devise: goes intestate
* class gift: goes to the other members of the class
* common law no residue of a residue: residuary gifts to classes of beneficiaries that fail - the devise passes through intestacy
* California residuary device to a class: it is treated as a class gift and goes to the other members of the class

Question 20

What do you do when a spouse has been omitted from a will because the will was made before the person got married, and then the person died after getting married but never updated the will?

Answer 20

The law presumes that this failure is an oversight as long as the testator married the person after execution of all of his testamentary instruments, including codicils that are published later.

Question 21

How much would an omitted spouse get?

Answer 21

– CP: spouse gets other 1/2
– QCP: other 1/2
– SP: the share is capped at 1/2
* no surviving heirs: 1/2
* one bloodline: 1/2
* two bloodlines: 1/3

Question 22

If a husband makes a will, then marries his wife, then executes a codicil, but still doesn’t name the wife in the will, does omitted spouse apply?

Answer 22

No, because when he made the codicil that re-published the original will, and they were married when that happened, so it was an intentional oversight.

Question 23

What are situations when a spouse would not get a share of the estate?

Answer 23

• if a contrary intention was made in the will
  – if the decedent provided for the spouse by transfer outside of the estate
  – if the spouse made a valid agreement waiving that right