trust will Flashcards
To determine what rights A,B,C have in Ts’s estate, the first issue is …
to consider the validity of any of the testamentary documents executed by Ts.
A valid ( ) will requires…
Signing of a will by interested witness …
Before that if you think this is a (holographic ) wil
The instrument would not qualify as an attested will because it is not witnessed.
A valid ( attested ) will requires…
1 valid testamenrtary capacity and testamentary intent
There are no indication here of any kind of undue influence or fraudulent behavior.
2 formalities
must sign in the presence of 2 disinterested witnesses
interested witness is a witness who is a beneficiary under the will
3 witness must also understand the instrument they signed is testator’s will
4 witnesses must also sign the will
Signing of a will by interested witness does not invalidate the will
Instead a rebuttable presumption of undue infuence applies to the interest witness.
For the will to be valid there must be
1)
2)
3(
For the will to be valid there must be 1) capactity 2) intent 4) formalities
a testator must be
1) at least 18 years old
* Here he had a child therefore presumably T was over the age of 18*
2) understand the natural object of bounty of his will
* Here, given that he described in the will his stepson and daughter and his wife , he likely understand the nature of his relationship*
3) understand the extent of her property
* Here, given that he gives $10000 to his stepson and leaves the share s of his CP to his wife , T likely understand the extent of his property*
4) understand that she is executing a will
* T likely understand the nature of his action given that he entitled the document that he typed “Will of T”*
Holographic will created
Before that if you think this is a holographic will
The instrument would not …
A holographic will is created
1) material terms is in testator’s own hand writing
2) must be signed by the testator
In california a date is not required
however if it is unable to establish that will can came last undated holograph is not probated or invalid to the extent of the inconsistency
Undue influence exists …
Undue influence exists where the testator is susceptible to influence and there is opportunity to influence her to lead unnatural result by will. The gift to the person who exercised the undue influence lapses(got to the residue) The court give the property to the residuary devisees Undue influence is presumed if there is a confidential relationships
Here,M
here, Mary typed a will stated “this is my will” It is presumed that M is at least 18 She understand the natural objects of her bounty because she mentions her 2 children She knows extent of her property since she disposes of her stock and her house
CA undue influences Under the CA law there is a presumption of unudue influence if
Under the CA law, there is a presumption of undue influence
if the transfer to
1) a person hwho drafted the instrument or his family
2) a person who is in a fiduciary relationship with the transferor
3) a care custodialn of dependent adult
If there is an instrument
you must examine whther it is
A will ( the previous will was incorporated)
A codicil (to modify the previous will)
the doctrine of integration INTEGRA
1)
2)
3)
…
..is integrated into the will
1) all papers
2) present at the time of execution
3) intended to be a part of that will
is deemed to have been…in integrated into the will
incorporation of reference
1) 3)the same
3) intended to incorporate it into will
4) clearly identified in the will
Incorporation by reference (参照して設立）
Even if it was not integrated
A writing can also be incorporated by reference if it is…
if it is
1) document (invalid deed is OK)
2) present at the time of execution
3) testator has intended to incorporate it into will.
4) clearly identified in the will
(1) (2)(3) Doctrine of integrational papersと同じ
ーーーー(3) intended to be a part of will
Facts of independent significance(IS) parol
generally all of the material terms of the will must be within the will itself and
extrinsic evidence is not allowed to supplement the will provisions.
( A will was patently defective if the identity of a beneficiary cannot be ascertained, ex stepson, wife)
Under the theory of acts or facts of independent significance
the court may use
external fact to fill in the blanks in the will
if the external facts would be in existence regardless of the will(independent from will).
A Codicil is
A codicil is a testamentary instrument executed which modifies, amend or revokes a will.
A codicil republish(down-dating) the will
DRR the doctrine of … If testator revokes her will in the mistaken belief that … the revocational of the first well be …
DRR the doctrine of dependent relative revocation
and allows a court to disregaed the revocation caused by mistake. (will 1 can be probated under DRR)
If testator revokes her will
in the mistaken belief that
a substantially identical will would be effective
and but for this mistake would not have revoked the will/
in order to modify an existing will the testator must follow …
in order to modify an existing will the testator must follow the same formalities as creating the initial will and the testator must sign and date the document
A will can be revoked by a
1)
2)
3)
Revocation(by physical act, subsequent written instrument,by operation of law)
1) A will can be revoked by a physical act
if 1) the will is destroyed , cancelled, torn
2) by testator or by someone at his direction
3) testator has intent to revoke
2) A will can be revoked by executing a subsequent will or codicil.
3) A will can be revoked by operation of law
Revocation by subsequent instrument Generally the will may be revoked by the execution of subsequent valid will that …
Generally the will may be revoked by the execution of a subsequent valid will
that either
expressly revokes the earlier will or
is inconsistent with the terms of the earlier will.
If it is inconsistent in terms, the earlier will is revoked only to the extent of the inconsistency.
Revocation by operation of law An pretermittedchild is a child …
An pretermitted child is a child born unknown or adapted after all testamentary instruments are executed and not provided for any testamentary instrument(will , codicil, revocable inter vivos trust). an pretermitted child shall receive her intestate share plus assets held in any inter-vivos trust unless the will explicitly disinherited(omitted child) or provided the child in another way.
D would be considered an omitted child and have a right to his intestate share, Because, A ,B, and C were all alive ,D would be entitled to 1/4 of S’estate. Dave will be able to receive his interest in the estate by abating what was given to the other children. v, and would mean that Ann, Beth, and Carol would each have their interest reduced from 1/3 of the estate to 25%.
An Pretermitted spouse is
An Pretermitted spouse is a surviving spouse who married the decendant after the execution of all testamentary instruments.
An omitted spouse shall receive her intestate assets plus assets held in any intervivos trust .
Here, there is no evidence that facts exist that would prevent Carol from making a claim as a pretermitted child.
Statutory share is 1)the one half of the Cp 2)any revocable inter vivos trust 3)a share of the SP without ever having executed any testamentary instrument. Unless intentional ,provided in another way, Omitted spouse signed a waiver.
The rule of lapse If beneficiary does not survive the testator…
Under the CA ######statute,if the devisee
B’s gift lapses. lapse は人predeceased！
Unless a contrary intent is expressed
the gift fails and falls into the residue.
However under the CA’s anti lapse statute if the gift is to testator’s kindred who predeceased the testator leaving surviving issue （要は子供に孫がいたとき）
the issue of the predeceased devisee will step into their shoes
When a testator no longer own the gift at their death …
Ademption(遺贈撤回） by extinction （消滅絶滅）
When a testator no longer own the gift at his death,
A gift fails and
the beneficiary is to take nothing.
In California, courts will look to the intent of the testator to determine whether they meant the gift to fail or adeem if tracing is possible
California recognizes three exceptions to this rule:
1) when the stock is changed to another form of stock (by merger, etc.),
2) when the executor of the estate sells the property, and
3) when Testator receives condemnation proceedings and there’s no issue of traceability
For trust to be valid, there must be
For trust to be valid there must be
1) settlor with intent 2) trust property 3) valid purpose of the trust 4) trustee 5) beneficiary 6) delivery 7) not against rule against perpetuities
The settlor delivers the res to the trustee, who has legal title, to hold for the benefit of the beneficiary, who has equitable title
do not have to be in writing,however SOD applies to the real property
if the words are not sufficient to create a trust and he parol evidence is not sufficient, the transferee owns the property in fee simple.
if the trust purpose is illegal or contrary to public policy,,,
the court will
1) excise illicit condition and X would take the trust free of the condition (such as on the condition that X divorces his spouse)
2) if it is not possible to excise illegality
the court with its discretion
either invalidatethe trust or allow the trustee to kep the property for herself as puinishment for settlor
if there is no trustee
the court will appoint the trustee.
Untill a trustee is appointed the settlor or the settlor’s estate will hold legal title
How to apply the formation
Here, Sam(S) created a valid intervivos trust with himself as Trustee
and Tara(T)as the successor Trustee
for the benefit of his 3 children.
Therefore a valid pourover will was created with each ABC receiving equal shares of all of the assets.
she settle declaratory trust naming himself as a trustee and after he die or become incapacity name Tara as Trustee.Thus the there is valid inter vivos trust
Thus the there is valid inter vivos trust
