r/s

Question 1

per capita

Answer 1

surviving issue of equal degree –> take equally

Question 2

per capita with representation

Answer 2

surviving issue not of equal kinship then divided at first generation in which at least one member has survived decedent. shares that go to members that predeceased the decedent go to their issue

Question 3

contemporaneous death

Answer 3

survive by 120 hours
prove by preponderance of evidence

Question 4

capacity

Answer 4

18+
understand making a will, extent or property, who heirs are

conservator: court appointed and authorized

Question 5

intent

Answer 5

intend for it to have testamentary effect
know and approve of contents

Question 6

what is needed for a valid will

Answer 6

capacity, intent, written and signed by T, two witnesses

Question 7

witnesses

Answer 7

signed in joint presence and attested to by two w’s

if doesn’t sign in presence of witnesses, must expressly or impliedly acknowledge signature to them

witnesses must be aware that it is a will

Question 8

presence tests

Answer 8

line of sight: can see each other

conscious presence: awareness that act is performed

Question 9

interested witnesses

Answer 9

rebuttable presumption that exerted undue influence.

if not rebutted, take intestate share

Question 10

harmless error

Answer 10

if will isn’t executed in compliance with law, if there was substantial compliance and clear and convincing evidence that at time of execution, testator intended it to constitute will

Question 11

holographic will

Answer 11

T handwrites material provisions: beneficiaries, items to be received
and signs

Question 12

codicils can fix

Answer 12

republish date
make invalid will valid
cure interested witnesses

Question 13

deed

Answer 13

if grantor delivers deed to third party and says give it to grantee upon death, then it is will substitute

Question 14

choice of law

Answer 14

follows outside state law and executed there: valid in CA

doesn’t follow outside state law where executed but decedent domiciled and dies in CA: valid if follows CA rules

Question 15

revocation methods

Answer 15

subsequent instrument (implied/express)
physical act
operation of law

Question 16

physical act

Answer 16

destroying part or all of will + intent to revoke at same time

Question 17

revocation by operation of law

Answer 17

divorce or dissolution

Question 18

revival methods

Answer 18

republication: revocation of will or codicil that revokes a previous will –> revives if proof of intent to revive

dependent relative revocation: testator revokes will due to mistake and would not have revoked but for mistake. court will revive if original will is closer to T intent

Question 19

integration

Answer 19

pages present at time and intended to be part of will

attachment or language that is continuous

Question 20

incorporation by reference

Answer 20

existed at time will was executed + intended to be incorporated + described with sufficient certainty

if personal property not worth too much: need not be in existence at time will was executed

can incorporate invalid will

Question 21

ademption: CL vs CA

Answer 21

CL: change in form or gift missing means gifts fails

CA: testator’s intent for beneficiary to take new form, then can trace

Question 22

omitted spouse

Answer 22

applies if will signed after marriage. can get 1/2 CP and up to 1/2 SP, unless

-intetional omission on face of will
-given property via other means
-agreement and waiver
-care custodian married dependent adult testator while or within 90 days of providing services and decedent died less than 6 months after marriage commenced

Question 23

omitted children

Answer 23

born or adopted after will created
T didn’t know of existence
T thought they were dead

UNLESS:
-alternate provision
-T had other kids at time will was executed and left all to omitted child’s parent
-intent to omit on the face of the will

Question 24

advancement

Answer 24

lifetime gift satisfying intestate share

contemporaneous writing by decedent OR

decedent or heir’s writing

hotchpot analysis: add back into estate, divide by number of children, subtract from intestate share

Question 25

insane delusions

Answer 25

belief for which there is no factual or reasonable belief but testator believes despite reason and evidence to contrary. causation of different disposition

Question 26

UI traditional

Answer 26

SMOCks are traditional susceptibility motive opportunity causation

Question 27

UI CA version

Answer 27

AAVE vulnerability ( incapacity, illness, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency where the influencer knew of, or should have known of, the alleged victim’s vulnerability.) apparent authority ( fiduciary, family member, care provider, health care or legal professional, spiritual adviser, expert, or other qualification) actions: (i) controls necessaries of life, medication, the victim’s interactions with others, access to information, or sleep; (ii) use of affection, intimidation, or coercion; (iii) initiation of changes in personal or property rights and use of haste or secrecy in effecting those changes. equity of result: economic consequences to the victim, any divergence from the victim’s prior intent, or the appropriateness of the change in light of the length and nature of the relationship,

Question 28

presumption of UI

Answer 28

CPU confidential relationship participated in executing will unnatural gift rebut by clear and convincing evidence or take intestate share

Question 29

statutory presumption of UI

Answer 29

drafter transcriber or caused it to be transcribed and fiduciary care custodian of dependent adult if will executed when services provided or within 90 days care custodian that marries dependent while or within 90 days after providing services if instrument executed less than 6 months after marriage person connected to one of those person partner/employee of law firm of drafter or transcriber rebutted through c and c evidence

Question 30

lapse and anti lapse

Answer 30

At common law, if a beneficiary died before the testator or before the time proscribed in the will, the gift lapsed into the residuary. under California's anti-lapse statute, if the gift is made to someone who is kin (blood relative) to the testator or kin to the testator’s current or former spouse, but the beneficiary predeceases the testator and leaves issue, the issue take the gift. anti-lapse doesn't apply if survival provision

Question 31

devise classificaiton

Answer 31

Specific devises: distinguished with reasonable accuracy from other property General devises: meant to be satisfied from general assets Demonstrative: gift from identifiable source Residuary: satisfied when all claims and other gifts satisfied

Question 32

conservator

Answer 32

Conservator has fiduciary duty and must act in accordance with testator’s wishes.

Question 33

lapse and class gifts

Answer 33

if beneficiaries are class, only members of class who are alive at execution of trust or will can receive / receive anti lapse protection

Question 34

abatement

Answer 34

if assets of estate cannot pay debts and gifts, court will abate/reduce gifts in order and pro rata→ intestate property, residuary, general, specific

Question 35

disclaimer

Answer 35

in writing and identify decedent, describe interest and define extent

Question 36

rebuttable presumption of revocation

Answer 36

if a will once known to exist cannot be found upon T’s death, the burden is on the proponent of the existence of a will to prove the will’s existence by clear and convincing evidence

Question 37

ademption by satisfaction

Answer 37

a general, specific, or demonstrative devise may be satisfied in whole or in part by an inter vivos transfer to the devisee after the execution of the will, if it was T’s intent to satisfy the devise by the transfer * T’s intent to adeem—must exist before the legacy or bequest is rendered inoperative, and in CA must be expressed in a contemporaneous writing that shows the intent to charge the property given as an advancement (no signature needed in CA) * No presumption in CA—to find ademption by satisfaction: o Instrument provides for deduction of the lifetime gift from the at-death transfer; o T’s intent to adeem is expressed in a contemporaneous writing; o Transferee acknowledges in writing that the gift is in satisfaction of at-death transfer; or o Property given is the same that is the subject of a specific gift to that person

Question 38

slayer rule

Answer 38

an intentional and felonious killer of the decedent is treated as predeceased and severs any joint tenancies; CA does not apply anti-lapse to protect the killer’s issue

Question 39

elder abuse

Answer 39

an abuser is treated as predeceased in CA