Rule Statements Flashcards
Community Property Share
The surviving spouse of an intestate decedent is entitled to the decedent’s 1⁄2 CP and quasi-CP. The surviving spouse’s SP share will depend upon the number of surviving lineal descendants, parents, or issue of parents. The surviving spouse must be legally married to the decedent at the time of death, and must also survive the decedent by 120 hours to take by intestacy.
Formalities
By will, a California resident can dispose of all of his separate property and, if he is married or in a domestic partnership, of his one-half share of community property and quasi-community property.
Formalities - Writing
The will must be signed by the testator (T), T must be at least 18 and of sound mind, and T’s signature must just indicate his desire to sign.
Formalities - Witnesses
The will must be signed in the joint presence of and attested to by two witnesses, and if the T doesn’t sign in presence of witnesses, he must expressly or impliedly acknowledge his signature to them before they sign. The witnesses must be of sufficient mental capacity and maturity, and aware that the instrument is a will.
Formalities - Interested Witness
An interested witness is competent, and the will is valid. However, unless there were two other disinterested witnesses, a rebuttable presumption is created that the interested witness/devisee exerted undue influence.
Formalities - Testamentary Intent
T must understand he is executing a will and intend for it to have testamentary effect, and must generally know and approve of its contents.
Formalities - Compliance (“Substantial Compliance” in CA)
If a will is not executed in compliance with the law, the will is treated as if it had been executed in compliance, if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.
Formalities - Holographic Wills
T must handwrite the material provisions of a holographic will, T must sign the instrument, and although it need not be witnessed or dated, it must be clear that T intended the document to be a will.
Codicils
A codicil must be executed with the same formalities as a will, and a validly executed codicil republishes a will as of the date of the codicil, and may even validate an invalid will if the codicil refers to it with sufficient certainty to identify and incorporate it.
Revocation - Subsequent Instrument
A testator can revoke a will by executing a later will or codicil that partly or completely revokes the prior will. The revocation can be express or can be implied by the terms of the subsequent instrument, and oral revocations are not valid. Finally, if there are inconsistencies between the will and codicil, the later document controls and revokes the prior inconsistencies.
Revocation - Physical Destruction
A will may be revoked by burning any portion thereof, or by canceling, tearing, obliterating, or destroying a material portion of the will with the intent to revoke it. Some defacement of language is required, and a 3rd party can revoke on behalf of the T if at his direction and in his presence. Destruction of a signed original or duplicate original presumptively destroys all copies.
Other issues regarding REVOCATION:
o Divorce (not separation) o Partial revocation o Alteration o Holographic wills o Lost wills Rebuttable presumption of revocation Duplicate originals Absence of intent to destroy o Revocation of codicils—revives will
Revival - Republication
Revocation of a will or codicil that revokes another will revives the original will if there is proof that the T intended to revive the original will. Extrinsic evidence is only admissible if the revocation was by physical act.
Dependent Relative Reallocation
A testator who revokes a will by subsequent instrument or physical act, and is under a mistaken belief of law or fact, and who wouldn’t have revoked but for such belief, has not effectively revoked his will.
Four types of gifts
A specific legacy, devise, or bequest is a gift of property that can be distinguished with reasonable accuracy from other property that is part of the testator’s estate.
A general legacy is a gift of personal property that the testator intends to be satisfied from the general assets of his estate.
A testator intends that a demonstrative legacy be paid from a particular source, but if that source is insufficient, he directs that the legacy be satisfied out of the general assets of the estate.
A residual legacy is a legacy of the estate remaining when all claims against the estate and all specific, general, and demonstrative legacies have been satisfied.
Incorporation by Reference
A writing not executed with testamentary formalities may be incorporated by reference if it existed at the time the will was executed, is intended to be incorporated, and is described in the will with sufficient certainty. In CA, the writing need not exist at the time the will was executed if it only disposes of the T’s personal property.
Acts of Independent Significance
A will can provide for designation of a beneficiary or amount of a disposition by reference to some unattested act or event occurring before or after execution of the will or the T’s death, if the act or event has some significance apart from the will.
Lapse
If a beneficiary dies before the testator, the gift lapses or fails and goes to the residue. Absent a residuary clause, the gift passes through intestacy.
Anti-Lapse Statute
Under California’s anti-lapse statute, if the gift was made to a blood relation of the testator or his current/former spouse, and the relation predeceased the testator but left issue, the issue succeed to the gift. When the gift is to an entire class, but anti-lapse applies because the class members are related to the testator, then the issue of the predeceased member will also take.
Abatement order
Intestate property
Residuary bequests
General bequests to non-relatives and then relatives
Specific bequests to non-relatives and then relatives
Ademption by Extinction
If the subject matter of specific bequest is missing, destroyed, or there is a substantial change, the beneficiary takes nothing, but California courts will examine the testator’s intent at the time he disposed of the subject matter of the bequest. The beneficiary is entitled to whatever is left of the specifically devised property or balance of the purchase price owing from the purchaser of the property.
Ademption by Satisfaction
A general, specific, or demonstrative devise may be satisfied in whole or in part by an inter vivos transfer to devisee after execution of the will. The testator’s intent to adeem must exist before the legacy or bequest is rendered inoperative, and in CA it must be expressed in a contemporaneous writing signed by either the testator or the beneficiary.
Securities
Before a testator’s death, a bequest of a certain number of shares that were owned by testator at the time the will was executed is deemed to include any additional shares of that security by reason of stick split, dividend, etc. After death, classification of a gift controls the disposition of any income earned on the gift after the testator’s death.
Elective Share
The surviving spouse or domestic partner is entitled to a forced share of one-half of the community property and quasi-community property. The spouse or domestic partner must elect to take this share in lieu of all other interests she may have under the testator’s will.
