WILLS

Question 1

When does DRR apply?

Answer 1

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

Question 2

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

Answer 2

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.

Question 3

Capacity for Will

Answer 3

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

Question 4

What happens if you lack capacity for will?

Answer 4

Entire will is invalid

Question 5

What is an INSANE DELUSION?

Answer 5

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.

Question 6

Define FRAUD:

Answer 6

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.

Question 7

What types of Fraud can there be with a will?

Answer 7

1. Fraud in the Inducement
2. Fraud in the Execution
3. Fraud in Preventing revocation

Question 8

What are 2 situations with Fraud in the execution?

Answer 8

1. Someone forges T’s signature on the will

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

Question 9

What is the result of Fraud in the Execution?

Answer 9

The entire will is invalid.

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

Question 10

What is the situation with Fraud in the Inducement?

Answer 10

Wrongdoer misrepresents the contents of T’s will

Question 11

What is the effect with Fraud in the Inducement?

Answer 11

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.

Question 12

Define: UNDUE INFLUENCE

Answer 12

Where T’s FREE WILL is subjugated

Question 13

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

Answer 13

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

Question 14

What is the Prima Facie Case of Undue Influence?

Consequence?

Answer 14

SOUP
Susceptibility
Opportunity
Unnatural Result 
Participation (Active) 

–Affected part of will fails

Question 15

What is the Case Law Presumption of Undue Influence?

Consequence?

Answer 15

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

2. Active Participation
3. Unnatural Result

–Affected part of will fails

Question 16

What is a “Confidential Relationship?”

Answer 16

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

Question 17

What is the Statutory Presumption of Undue Influence?

Answer 17

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.

Question 18

What is a “care Custodian”

Answer 18

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

Question 19

What is “Incorporation by Reference?”

Answer 19

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)

Question 20

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

Answer 20

If meets tests of Incorporation by Reference, yes!

Question 21

What are “Facts of Independent Significance”

Answer 21

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

Question 22

What is an example of fact of independent significance?

Answer 22

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

Question 23

Can anything work to integrate this?:

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

Answer 23

Not incorporation by Reference – not in existence

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

Question 24

What is a Tangible Personal Property List?

Answer 24

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)

Question 25

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

Answer 25

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

Question 26

What does UTATA say about a Pour Over Will?

Answer 26

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)

Question 27

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

Answer 27

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.

Question 28

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

Answer 28

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

Question 29

What is Integration?

Answer 29

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

Question 30

What is Incorporation by Reference?

Answer 30

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

Question 31

What is a Codicil?

Answer 31

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

Question 32

What is Revival

Answer 32

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.

Question 33

What is Ademption

Answer 33

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.