SIXTH CONCEPT: CHOICE OF LAW, Codiciles. Flashcards
(Choice of law) In what 3 ways can a will written and executed outside of CA, (and then that testator moves and lives in CA, and dies) be admitted into CA probate?
The will is admitted into probate in California if the will complies with the formalities of execution of:
1) California law
2) the law of the place where the will was executed
3) The law of the place of T’s domicile at the time of execution
Define a codicil.
A testamentary instrument executed in compliance with the CA probate code which modifies amends or revokes a will
Define a republication
A codicil republishes a will. This means that a codicil causes the will to speak from the date that the codicil is executed on (also called “down-dating”).
Under what 2 scenarios will republications come into play on the bar exam?
[i] pour-over wills and incorporation by reference
[ii] pretermission problems
On January 1, testator executes an inter-vivos trust. On January 2, testator executes a will with a pour over provision. On January 3, the trust is amended.
What result?
On these facts, incorporation by reference will not work because the trust as modified was not in existence when the will was executed.
On January 1, testator executes an inter-vivos trust. On January 2, testator executes a will with a pour over provision. On January 3, the trust is amended. On Jan 4 T executes a codicil which republishes the will. What result?
Because the codicil republishes the will, the codicil causes the will to speak from January 4. Thus, incorporation by reference now works because the trust as modified was in existence on the date that the will is deemed executed, which now is January 4.
Year 1 the will is executed (everything to charity).
Year 2 child is born or testator marries or enters into a domestic partnership (child, spouse, or domestic partner is pretermitted). Year 3 a codicil is executed which republishes the will.
Because the codicil republishes the will, the will now speaks from Year 3. As such, there is no pretermission because the birth, marriage, or domestic partnership is deemed to have taken place before the will was executed.
Because a codicil is itself deemed to be a testamentary instrument, the birth of the child or marriage or domestic partnership took place before the codicil was executed. Is republication necessary?
No. This alone (without any discussion of
republication) precludes the finding of a pretermission.
On the bar exam, when you have a pretermission problem and a subsequent republication of the will by the codicil, discuss. What 2 things should you discuss?
[a] the codicil republished the will, and, in the alternative,
[b] the codicil itself is a testamentary instrument, thus the birth, marriage, or domestic partnership took place before the codicil (testamentary instrument) was executed, consequently precluding any pretermission attack by the child, spouse, or domestic partner.
If testator executes a will, then executes a codicil, and subsequently revokes his codicil, there is a rebuttable presumption that testator intended to revoke what?
only his codicil
if testator executes a will, then executes a codicil, and testator subsequently revokes the will, there is a rebutable presumption that testator intended to revoke what?
the will and codicil.
