Week 10

Question 1

What kind of property is 6132?

Answer 1

tangible personal property

Question 2

What is the upper limit on 6132?

Why?

Answer 2

$25,000

So, large estates aren’t messed with

Question 3

What is intangible property in 6132?

Answer 3

fungible things, that can be exchanged, e.g., stocks

Question 4

When does 6132 matter?

Otherwise?

Answer 4

the document came after the will

Can just use 6130, and 25,000 doesn’t apply

Question 5

What is Johnson v. Johnson about?

Facts?

Issue?

Holding?

Rationale?

Should it be cited to on the final? Why?

Answer 5

Incorporation by reference

Dexter G. Johnson typed a will that he did not sign or have witnessed. He handwrote another testamentary provision on the same document and signed the will.

The Court considers whether the document may be admitted to probate.

Court allowed the will into probate

Handwritten words are a codicil to the will; Codicil incorporates by references and republishes the will

No; it was wrongly decided; poorly reasoned

Question 6

What’s wrong with this quote from Johnson v. Johnson:

“A will may be so defective, as here, that it is not entitled to probate but if testamentary in character it is a will, nonetheless.”

(2)

Answer 6

Seems to have dismissed all the formalities

Not a will until admitted into probate

Question 7

What is wrong with the rationale of Johnson v. Johnson, i.e., incorporation by reference + republication?

Answer 7

Incorporation by reference is mutually exclusive with republication since you can only do the former with a codicil and the latter with a will. There was no earlier will, so can’t repbulish (can’t codicil to a non-will).

Question 8

When can a republication by codicil cure a defect of a will?

Answer 8

When the defect is nonfatal

Question 9

Why doesn’t incorporation by reference work in Johnson v. Johnson?

Answer 9

1. Writing is in existince at the time the will was executed
2. Doesn’t specifically reference the prior writing
3. No identification of the prior writing

Question 10

What about Johnson v. Johnson if in CA? (2)

What provision?

Answer 10

might allow typewritten part of the will to just be the will

or make it all the will

6110 (c)(2): show clear and convincing evidence of intent

(no such provision in OK)

Question 11

What is the statute for acts of independent significance?

What is an example of an act of independent significance? Result?

Answer 11

6131

I give my car to Jeremy. At the time they wrote the will, had a Ford. When he dies, he has a Lamborghini. Jeremy gets the Lamborghini.

Question 12

What are the three problems in construction of wills?

Answer 12

1. Obvious mistakes in the will
2. Changes in the family situation between writing of will and testator dies
3. Giving away things you don’t have

Question 13

When do we allow extrinsic evidence in CA?

Answer 13

To resolve ambiguities in a will

Question 14

What is the general rule about reformation of wills?

Answer 14

Can’t reform them

Question 15

What is Mahoney v. Grainger about?

Facts?

Issue?

Holding?

Rationale?

Constructive trust? Why or why not?

Answer 15

Mistakes in Wills

Sullivan executed a will that disposed her real and personal property to her “heirs at law.” Extrinsic evidence revealed that she informed her attorney that she wanted to leave her property to her twenty-five cousins, equally. The trial judge ruled that Sullivan’s only heir at law was her aunt and not her twenty-five cousins.

Whether extrinsic evidence that a testator intended to dispose property to beneficiaries not named in the will may be admitted when a beneficiary can be ascertained from the face of the will?

No.

The words used in the will, “heirs at law living at the time of my decease” undoubtedly refer to the testator’s aunt and not her cousins. The testator’ only heir at law was her aunt. Extrinsic evidence would only be admissible to help to determine the meaning of testaemtnary language that its not clear in its application to the facts.

No; no wrongdoing by aunt

Question 16

What if Mahoney v. Grainger were decided in CA?

Answer 16

CA courts will find an ambiguity in the will so that extrinsic evidence is allowed in

Question 17

What is an ambiguity?

Answer 17

the ability to make more than one reasonable interpretation of the language

Question 18

Where might a CA court find ambiguity in Mahoney v. Grainger?

Answer 18

Heirs mean intestate takers, but colloquial version is less specific; maybe she meant the latter (despite having a lawyer)

Question 19

What are some times regular people mean something else than lawyers might, i.e., the mistakes?

Answer 19

1. personal property includes real property
2. heir means not intestate takers, but will takers

Question 20

What is Arnheiter v. Arnheiter about?

Facts?

Issue?

Holding?

Answer 20

Mistakes

Unambiguous mistake in will that disposes of No. 304 (which the testator did not own - owned No. 317).

Can we correct the mistake?

No, but ignore part of it (304), and figure out what he owns on that avenue instead; ends up correcting the mistake in effect

Question 21

What is the Estate of Gibbs about?

Facts?

Issue?

Holding?

Answer 21

Mistakes in Wills

Lawyer wrote Robert J. Krause, when it was Robert L Krause, and the totally wrong address of the person the testator meant to give it to

Can it be corrected?

No, but can ignore it and effectively correct it with extrinsic evidence.

Question 22

What is Erickson v. Erickson about?

Facts?

Issue?

Holding?

Rule? (2)

Does this revocation occur in CA?

What about scrivenor’s errors in CA?

Answer 22

Mistakes in Wills

Couple executed their wills a couple days before their marriage, which then revoked their will. Husband dies 8 years later.

Whether extrinsic evidence is admissible if it reveals a scrivenor’s error led the testator to believe that his will was valid?

Yes, admissible.

When there is an scrivenor’s error, clear and convincing evidence of that error can undo the mistake. Wouldn’t correct testator’s mistake though.

No

They don’t undo the mistake

Question 23

What is the Estate of Duke about?

Facts?

Issue?

Holding?

Rationale?

What about this case? (2)

Answer 23

Mistakes in wills

CA case; Will did not explain what was to happen if wife died before him, which is what happened; died intestate, leaving the brother he didn’t like with a lot of money

Look at extrinsic evidence so as not to die intestate?

extrinsic evidence of testator’s intent was not admissible

Those are the rules

Up for review by CA Supreme Court; both the trial court and appellate court said they didn’t like following the rule anyway

Question 24

What is the traditional rule if there is a lapse?

What is a lapse?

What is the “no residue of the residue rule”?

Answer 24

Goes to the residue

Some beneficiary predeceases testator

If A and B are each supposed to get half of residue, and A dies before testator, B does not get all of residue; that amount goes intestate to heirs.

Question 25

What is the Estate of Russel about?

Facts?

Issue?

Holding?

Rule?

What would the common sense outcome be? Why?

Answer 25

Void gifts

Stuff given to dog

Reallocate dog’s share to other residuary taker, or allow to fall into intestacy?

Latter

“No residue of the residue”

Let other residuary taker take all, so that he can take care of the dog

Question 26

What is a transferee for the purposes of 21110?

What does 21110 do for transferees?

What kind of statute is this called?

Answer 26

Kindred of the testator

Issue of transferees takes if there is a lapse of the transferee

an anti-lapse statute

Question 27

What about the 21111 and the “no residue to the residue rule”?

Answer 27

21111 gets rid of that rule; residue goes to the other residuary taker(s)

Question 28

What kind of statutes are 21111 and 21110?

Answer 28

partial intestacy statutes; for when the will doesn’t help

Question 29

In CA, T devises entire estate: one-half to B, one-half to A. B dies before T, leaving a child, C. T dies. What happens to B’s share, according to:

Common law (without specific CA statutes)?

CA statute?

What if B had no issue?

What if B had a spouse?

Answer 29

B’s share goes intestate because of no residue of the residue, so goes B’s share goes 1/2 to C and 1/2 to A, giving A 3/4 and C 1/4 total.

C takes B’s share, because B is a tranferee and 21110 gives B’s lapse taking to his issue

C takes all

Irrelevant, except for stepchildren

Question 30

T devises home to niece, A, and residue to B. B is not related. A dies before T, leaving a child, C. T dies. What happens to A’s share, according to:

Common law?

CA?

Answer 30

Lapse that goes to the residue, so B gets everything

Lapse (home) goes to C, because kindred

Question 31

What is the baseline in CA for ambiguity and extrinsic evidence?

Answer 31

Courts will bend over backwards to find ambiguity, in order to introduce extrinsic evidence

Question 32

What are the two conditions of 21110?

What happens when those conditions are satisfied?

Answer 32

1. Beneficiary is kindred
2. Have issue

Gift goes to issue

Question 33

What are the two steps of 21111?

What is the exception to the second step? What provision?

Answer 33

1. Look at the will instrument - follow it
2. If will doesn’t answer and not covered under 21110 (not kindred or don’t have issue), goes to residue (intestate)

21111 (b) share passes to other residuary takers instead of going intestate (in proportion to their interest)

Question 35

T devises entire estate: one-half to B, one-half to A, “but if A or B or both do not survive me, then I give such predeceasing child’s share to my friend F. B dies before T, leaving a child C. T dies.

What happens to B’s share? What provision?

Answer 35

Goes to F, because of 21110 (b):

The issue of a deceased transferee do not take in the transferee’s place if the instrument expresses a contrary intention or a substitute disposition.

Question 36

T devises entire estate: “to my brothers and sisters, A, B, C, D, and E, to share and share alike.” A, B, and C die before T, leaving descendants. T dies.

What happens to A, B, and C’s shares?

What’s the issue?

Answer 36

Does the term “share and share alike,” by itself, express a condition of survival, precluding application of an antilapse statute?

No; goes in fifths to issue and D and E

Question 37

T devises entire estate: “to my living brothers and sisters, A, B, C, D, and E, to share and share alike.” A, B, and C die before T, leaving descendants. T dies.

What happens to A, B, and C’s shares (two arguments)?

What to do on an exam? Probable result?

Answer 37

Living means, only D, and E should get it, and rest goes to D and E evenly according to instrument (21111(a)(1))

Living just means they were alive at the time, and issue take under 21110

Argue both sides, but pick a side; would probably be a failed transfer (go to D and E)

Question 38

T devises Blackacre “to my son Sidney if he survies me,” residue to this Wilma. Sidney dies before T, leaving a child, C. T dies.

Who takes Blackacre and why?

Answer 38

Wilma, because “if he survives me” evidences an intention that Sidney’s descendants should not be substituted for Sidney

Question 39

What is a class?

What is the law about class gifts?

Answer 39

A group of people, e.g., brothers and sisters

If one of the members of the class dies, other members of the class share according to their proportional interest

Question 40

T gives “to the children of A” (not related to T). A has B, C, and D. B dies before T. T dies.

What result?

Answer 40

failed transfer to B, but class gift so goes half and half to C and D; none to residue

Question 41

T “gives to the children of A: B, C, and D.”

Is this a class gift?

What is alternative to weight of authority?

Answer 41

Weight of authority says it’s not a class gift, because takers are listed

It’s an ambiguity that extrinsic evidence can help with

Question 42

What about “ A transferee under a class gift shall be a transferee for the purpose of this subdivision unless the transferee’s death occurred before the execution of the instrument and that fact was known to the transferor when the instrument was executed” in 21110(a)? (2 contingencies)

Use “to the children of A,” with A’s estate, children B, C, and D.

What’s important to remember?

Answer 42

B’s share is distributed to B’s issue, instead of to C and D,

unless B was dead at time of execution, then to C and D

This would not apply if T gave to the children of A, since B, C, and, D are not kindred of T (and thus are not transferees)

Question 43

When is ademption by extinction relevant? (Hint: specific/general) (3)

What theory does CA use? Describe.

Answer 43

When a testator doesn’t have property that was supposed to be given away in his/her will; specific gifts that are missing, then beneficiary is out of luck (called “adeeming”; gift has been “adeemed”); general gifts (e.g., $100k) that are not wholly available; these will be attempted to be fulfilled, even if only for $75k

intent theory: rebuttable presumption that cash value of specific gift, if within the four corners of the wills, there is an intent that the beneficiary will get a substitute gift (provided property no longer exists)