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WILLS & TRUSTS > WILLS > Flashcards

WILLS Flashcards

1
Q

When does DRR apply?

A

T revokes his will, thinking another disposition is effective, and BUT FOR this mistake, T would not have revoked the will.

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2
Q

What is a case where DRR doesn’t apply (though you’d think it would)?

A

Where the subsequent instrument revoking the will is DEFECTIVELY EXECUTED, DRR does not apply.
The “revoking instrument” is ineffective, so the revocation of the prior instrument is also ineffective, so no need for DRR! The first will stands.

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3
Q

Capacity for Will

A
  1. 18+ years
  2. Extent of property
  3. Nature and objects of bounty (spouse, issue, parents)
  4. Know you’re signing a will
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4
Q

What happens if you lack capacity for will?

A

Entire will is invalid

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5
Q

What is an INSANE DELUSION?

A

T has a FALSE BELIEF that was the product of a SICK MIND; there is NO EVIDENCE to support the belief; the delusion AFFECTED T’s will.

T has an unreasonable belief, not at all founded in reality, and but for that belief wouldn’t have disposed of gifts as she did.

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6
Q

Define FRAUD:

A
  1. Misrepresentation of MATERIAL FACT
  2. KNOWN TO BE FALSE by the wrongdoer
  3. For the PURPOSE of INDUCING action or inaction
  4. & the action actually RESULTS.
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7
Q

What types of Fraud can there be with a will?

A
  1. Fraud in the Inducement
  2. Fraud in the Execution
  3. Fraud in Preventing revocation
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8
Q

What are 2 situations with Fraud in the execution?

A
  1. Someone forges T’s signature on the will

2. T signs the will, told she is signing a different type of document entirely

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9
Q

What is the result of Fraud in the Execution?

A

The entire will is invalid.

If there was a prior will, this will could not have revoked it so it’s still valid.

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10
Q

What is the situation with Fraud in the Inducement?

A

Wrongdoer misrepresents the contents of T’s will

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11
Q

What is the effect with Fraud in the Inducement?

A

That part of the will that’s affected is stricken.
The gift fails and goes to either the residuary or the heirs, and they will be made CONSTRUCTIVE TRUSTEES to deliver the gift to the Intended Beneficiary.

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12
Q

Define: UNDUE INFLUENCE

A

Where T’s FREE WILL is subjugated

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13
Q

3 ways you should always discuss Undue Influence on the bar?

A
  1. Prima Facie Case – Undue Influence
  2. Case Law Presumption
  3. Statutory Presumption
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14
Q

What is the Prima Facie Case of Undue Influence?

Consequence?

A 
SOUP
Susceptibility
Opportunity
Unnatural Result 
Participation (Active)

–Affected part of will fails

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15
Q

What is the Case Law Presumption of Undue Influence?

Consequence?

A

1, There is a CONFIDENTIAL RELATIONSHIP between T and Wrongdoer.

  1. Active Participation
  2. Unnatural Result

–Affected part of will fails

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16
Q

What is a “Confidential Relationship?”

A

Traditional “Confidential Relationships”: Atty-client, Dr-patient, Guardian-ward, Clergy, Trustee-Beneficiary

in CA, WHENEVER one person reposes trust in another. Thus, could exist between TWO CLOSE FRIENDS

17
Q

What is the Statutory Presumption of Undue Influence?

A

Gifts to the following are PRESUMPTIVELY invalid:

  1. Drafter*
  2. Fiduciary
  3. Care Custodian
  4. Anyone related to the above
  5. Cohabitant or employee of the above
  6. Anyone in Firm/SH/Employer of Drafter

*presumption is CONCLUSIVE in case of the Drafter. Rebuttable for others.

18
Q

What is a “care Custodian”

A

Person who provides health or social services to a dependent adult.
* Does not include if they are uncompensated and had a preexisting relationship w/dependent at least 90 days prior

19
Q

What is “Incorporation by Reference?”

A

A non-integrated writing is given Testamentary effect and becomes part of the will.

  1. Writing IN EXISTENCE when will was probated
  2. CLEARLY IDENTIFIED in the will
  3. T must have INTENDED TO INCORPORATE document into the will (will be implied if you have the first 2)
20
Q

Can an Invalid Deed or Invalid Will be incorporated into the will?

A

If meets tests of Incorporation by Reference, yes!

21
Q

What are “Facts of Independent Significance”

A

Independent facts give meaning to who a Bene is or what gift is given. Must have an independent significance from mere testamentary purpose.

22
Q

What is an example of fact of independent significance?

A

e.g. “people I had dinner with on Thursday June 13.”

23
Q

Can anything work to integrate this?:

T’s will states “I leave all my property to people I will name in a note tomorrow.”

A

Not incorporation by Reference – not in existence

Not facts of independent significance – this note would not exist without the will.

24
Q

What is a Tangible Personal Property List?

A
  1. Writing referred to in will; dated; signed or in T’s handwriting
  2. Describes items/recipients w/R certainty
  3. No disposition >$5K per person
    (May be executed either before or after the will)
25
Q

What is a “Pour Over Will” and how do we validate it?

A

It is a part or all of T’s estate is DEVISED TO THE TRUSTEE OF AN INTER-VIVOS TRUST, to be administered pursuant to terms of that trust.

  1. Incorporation by Reference
  2. Facts of Independent Significance
  3. UTATA
26
Q

What does UTATA say about a Pour Over Will?

A

A Pour over will provision is valid so long as you have a valid trust, which was in existence before the will or at the time of the execution.

(ok if later modified)

27
Q

What can you use to validate the Pour Over provision in a will if the Trust is modified after the will is executed?

A

Incorporation by Reference: No – not in existence at time of will.

Acts of Indep Significance: Yes – trust is indep’ly significant.

UTATA: yes. statute says ok if trust is subsequently modified.

28
Q

What are the doctrines for Integrating other documents into the will?

A
  1. Integration
  2. Incorporation by Reference
  3. Acts of Independent Significance
  4. Tangible Personal Property List
  5. Pour-Over Will – UTATA
  6. Codicil
  7. Secret Trust
29
Q

What is Integration?

A

Papers actually present at the time that T executed her will may be probated as part of her will?

30
Q

What is Incorporation by Reference?

A

Documents outside the will that are in existence at the time of the will may be incorporated into the will:

  1. Writing
  2. T clearly Identified in will
  3. **In existence at time of will
  4. T intends to incorporate
31
Q

What is a Codicil?

A

A testamentary instrument that is executed subsequent to the will, intended to modify, alter or expand the will.
** Must comply with Wills Act Formalities**

32
Q

What is Revival

A

Although a second will or codicil is effectively revoked, a devise must be revived in order for beneficiary to take.

Under CL, the revocation of a codicil would revive a devise in the will. However, under CA law, the revival of a devise depends on the T’s intent. Extrinsic Ev is admissible to prove the T’s intent to revive the devise in the will.

33
Q

What is Ademption

A

When the specific property given is no longer owned by the T at the time of death, a specific bequest is adeemed – the bene is not entitled to the proceeds of the specific property or any property in lieu of the specific property.

In California, ademption is DEPENDENT upon the INTENT to adeem AT THE TIME the T disposes of the specific property.

WILLS & TRUSTS (3 decks)

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