Revocation of Wills Flashcards
When can a person with testamentary capacity revoke a will?
At any time prior to death
California omitted heir statutes
Protect a surviving spouse or domestic partner from being unintentionally omitted from a deceased spouse’s or domsetic partner’s will or revocable trust
Spouse or domestic partner’s omitted shares
If a testator marries or enters into a domestic partnership after executing all testamentary instruments, the spouse or domestic partner survives the testator, and the spouse is not provided for –> the surviving spouse may take, in addition to their share of the community and quasi-community property, an intestate share of the decedent’s estate.
The spouse’s or domestic partner’s intestate share of separate property may not exceed one-half of the value of the decedent’s separate property in the estate.
When does a surviving spouse/DP not receive an intestate share?
- intentional omission
- when provided for by non-probate transfers
- waiver
Spouse’s waiver of the right to share in testator’s estate
The spouse or domestic partner made a valid agreement waiving the right to share in the testator’s estate.
The rights that may be waived include:
1. take property by intestacy, will, or nonprobate transfer
2. be appointed executor or administrator
3. elect against the decedent’s will
4. take an omitted spouse’s or partner’s share
Requirements for waiver
The waiver must be in writing and signed by the surviving (waiving) spouse.
Spouse or domestic partner benefiting from the waiver must disclose their financial status to the spouse executing the waiver, and the waiving spouse must have independent legal counsel. Waiver is unenforceable if unconscionable.
Effect of dissolution or annulment of mariage or domestic partnership on the will
Unless the will expressely provides otherwise, if after executing the will the testator’s marriage or domestic partnership is dissolved or annulled, any disposition of property made to the former spouse is revoked.
Does remarriage or restablishment of a domestic partnership revive will provisions?
Yes, if any disposition in a will is revoked because of the dissolution or annulment of a marriage or domestic partnership, the provision is revived by the testator’s remarriage to the former spouse/DP
How does property that was supposed to pass to a former spouse pass after divorce?
As if the former spouse predeceased the testator
Omitted child statutes
Designed to protect children from being unintentionally omitted from a will on the assumption that the testator would have made a provision for the children has the testator thought about it.
In CA, if a decedent fails to provide for a child born or adopted after the execution of all testamentary instruments, the child receives an intestate share of the property.
What does a child born after the execution of all testamentary instruments receive in CA?
Intestate share of the property
Requirements for a child to receive forced share
Child must be:
1. born or adopted after the execution of all testamentary instruments
2. alive when the will was executed but thought to be dead, or
3. unknown to the testator because the testator was unaware of the child’s birth
The will must not show an intent to exclude the child
When does an omitted child NOT receive an intestate share?
- the decedent’s failure to provde for the child in the will or revocable trust was intentional and the intent appears on the face of the document
- the decedent provided for the child by transfer outside of the will or revocable trust
- when the will was executed, the decedent had one or more children and devised substantially all of the estate to the other parent of the omitted child
How is a pretermitted child’s estate satisfied?
a pretermitted child’s intestate share is first taken from that portion of the estate not disposed of by will or trust, if any. If that is not sufficient, so much as may be necessary to satisfy the share will be taken from all beneficiaries in proportion fo the value they may respectively receive under the trust.
Slayer statutes
A person who feloniously and intentionally kills the decedent is not entitled to;
1. any property under the intestate succession statute
2. any property covered by the statutory provision relating to gifts in view of impending death
3. any of decedent’s quasi-community property
the killer is deemed to have predeceased the testator and the anti-lapse statute is deemed inapplicable so that the killer’s issue cannot take in the killer’s stead.
How to determine whether a killing was felonious or intentional
Re: slayer statute
a final judgment of conviction is conclusive; in the absence of conviction, the court may determine by a preponderance of the evidence whether the killing was felonious or intentional.