Week 9

Question 1

What is the effect of DRR?

Answer 1

Says revocation is no good

Question 2

What is the question with DRR?

What are the choices? (2)

Answer 2

What would the testator have wanted done, if there was a revokation, e.g., increase or decrease

in which case the choices are 0 or the original

Question 3

What is the Estate of Alburn about?

Choices? (2)

Holding?

Good example of what? Why?

Same or different in CA? Why?

Answer 3

Executed one will. Executed will two. Tore up will two thinking it would revive will one, but it didn’t, because it had already been revoked by will two.

Choices are will two or intestacy

Will two

Good DRR case, because they don’t have revival

CA would have a different result; has a revival statute (6123)

Question 4

How would Estate of Alburn be decided in CA ?

What statute?

Answer 4

Will 1 could be revived; instead of will 2 or nothing

CPC 6123(a): if will 2 revokes will 1, the revocation of will 2 by a revocatory act does not revive will 1 unless the proponent of will 1 shows that the decedent intended the revocation of will 2 to revive will 1

Question 5

What about DRR and revival? (2)

Answer 5

In CA, if revival is available and evidence is available, then revive it

With DRR, no revival

Question 6

When is revocation presumed?

What statutes? (3)

Answer 6

Divorce afterwards; partner is treated as having predeceased

6122, 6122.1, 5600

Question 7

What about 6122 and 6122.1?

Answer 7

They are only for wills

Question 8

What is the statute for “failure of nonprobate transfer to former spouse”?

Answer 8

5600

Question 9

What does 5600 not apply to?

Why?

Answer 9

Life insurance provisions

Life insurance lobby; don’t want to have investigate who divorced whom

Question 10

What is Estate of Jones about? Issue? Holding?

So what’s the advice?

Answer 10

T executes a will devising all his property to his wife, and if his wife does not survive him, then to his wife’s son (T’s stepson). T divorces his wife and then dies. T’s heirs are his children by a prior marriage. A state statute revokes all provisions in a will for a divorced spouse and treats the divorced spouse as having predeceased the testator.

Does the stepson take T’s property?

No

Revise your will after divorce

Question 11

What is the doctrine of integration?

Answer 11

All papers that are present at the execution of the will that are intended to be part of the will are part of the will

Question 12

What is the Estate of Rigsby about? Result?

Answer 12

First page admitted to probate, second page not, as a work sheet, but will be used as extrinsic evidence if there is ambiguity

Question 13

What happens when there is a codicil executed?

When would this matter?

How does this operate in terms of proof?

Answer 13

When the codicil is executed, the will that it has amended has been “re-published”

If re-publication of will occurs after the divorce, then revocation via divorce is null, via DRR

Presumption of republication can be rebutted if shown to be against intent of testator

Question 14

What are the requirements of “incorporation by reference? (3)

What statute?

Answer 14

1. language of will manifests intent to incorporate that document
2. language of will describes the writing succifiently to permit its identification
3. document has to when will is executed

6130

Question 15

What is Clark v. Greenhalge about?

Facts?

Holding?

What did attorney for Greenhalge do wrong?

What did the court miss?

Answer 15

Incorporation by reference

Helen Nesmith executed a will and made reference to a document outside of the will that would give guidance on how to distribute her estate. The executor, also a beneficiary under the will, refused to distribute a painting in accordance with a notebook that listed how Nesmith wanted to distribute certain pieces of personal property at her death. The probate judge found that the notebook was incorporated by reference into the will.

The language in the will, “a memorandum” does not preclude the existence of more than one memorandum. It also does not preclude the existence of a document in the form of a notebook from being included in the will. The fact that it was not labeled as such does not mean that it was not intended by the testator to be an instruction as to how to distribute her property at death. Since the testator retained the right to amend and alter her will after execution, the notebook is sufficiently described since it guides the executor in distributing her estate at death and the notebook was in existence at death.

?

Not clear if the writing was in existence at the execution of the will, required by 6130, as opposed to the notebook that the writing was in

Question 16

What is Simon v. Grayson about?

Facts?

Holding?

Would this meet CPC 6130?

Answer 16

Incorporation by reference

Grayson executed a will making reference to another document that would explain how to distribute $4,000 of his estate. The will indicated that the document would be dated March 25, 1932. Instead the document was dated July 3, 1933. The testator executed a codicil on November 25, 1933 and the court considers whether to include the document as a part of the will.

A document may be incorporated into a will that was in existence at the time a later codicil was made but not in existence at the time the will was written. A will makes sufficient refernce to a document outside of the will to be incorporated by reference even though the will states the date on the document is different to the date referenced in the will as long as the document serves the same function as the one stated in the will.

Probably; will sufficiently describes the writing to permit its identification