Trusts & WIlls Flashcards
Integration
(1) will consists of all papers actually present at the time of execution that T intended to consititute her will
(2) requisite intent and presence of the papers at execution
(3) extrinsic evidence is available to show intenet
Incorporation by reference
T must intend for document by showing
(1) document be in existence at the will’s execution
(2) sufficiently described in the will and
(3) proved to be the one described in the will
Omitted Child
(1) T may intentionally choose to disinherit children
(2) if a D unintentionaly fails to provide for a child born or adopted AFTER execution of the instrument, the child gets intestate share
Undue Influence (Will)
must establish
(1) influence was exerted on the testator
(2) effect was to overpower mind and free will of the T
(3) but for the influence, the change would not have happened
3 Tests for Undue Influence
(1) Prima Facie - factor analysis
(2) Common Law Presumptin of Influence - Shifting Burden
(3) Statutory
Undue Influence
Prima Facie
(1) Susceptible – some weakness - physical, emotional, financial.
(2) Opportunity.
(3) Active participation – the wrongful act that gets the gift.
(4) Unnatural result – not unnatural to prefer 1 kid over others.
(5) Wrongdoer benefits financially – watch for substantial indirect benefit.
Undue Influence
Common Law - Burden Shifting
(1) Confidential relationship
(2) Active participation
(3) Unnatural result
(4) Wrongdoer benefits
Undue Influence
Statutory
a donative transfer is presumed product of undue influence if to
(1) drafter,
(2) fiduciary who transcribed instrument,
(3) “care custodian” of “dependent adult” if instrument executed during care or +/- 90 days, or
Exception: presumption inapplicable if care custodian already had personal relationship with the transferor before
Conservator - WIll Execution
A validly appointed conservator can make a will or codicil for a now-disabled / incompetent person.
Rights of Creditors to Reach Assets in Trust
Revocable Trust: Assets are reachable by creditors
Valid Will Location Execution
will is considered valid in CA, if it complies with the laws of
(i) California,
(ii) the state where the will was executed, or
(iii) the state of the decedent’s domicile at death.
Spendthrift Provision:
Provision that prevents beneficiary from transferring, and creditors from attaching, his right to future payments.
Support Provision:
Provision that allows trustee to pay to beneficiary only as necessary for his health, support, maintenance, or education. Same rules as Spendthrift Provision
Discretionary Provision
Provision that gives trustee sole and absolute discretion to determine when and what, if ever and anything, to give to beneficiary.
Ademption
(1) ademption depends on whether the T intended to adeem the gift when he disposed of the property
