Wills

Question 1

What is a will?

Answer 1

a legal document used to dispose of the decedent’s property

Question 2

What is testate and intestate?

Answer 2

testate: the decedent dies with a will
intestate: the decedent dies without a will

+It is possible that some property is intestate if the property is not covered by a will

Question 3

What is a codicil?

Answer 3

an amendment to an existing will made by the testator to change, explain, or republish his will. It must meet the same formalities as a will or holographic will

• think of it as curing defects in the prior will
• If the codicil is properly executed, it is the new republication date

Question 4

What is intestate succession?

Answer 4

the default estate plan developed by the legislature when the decedent dies intestate

Question 5

What do you call the people who are entitled to receive property by intestate succession? The people who will receive property according to the will?

Answer 5

heirs

devisees

Question 6

Who are collaterals?

Answer 6

relatives through an ancestor (siblings, cousins, aunts etc.)

Question 7

What is representation?

Answer 7

when children of a parent stand in the parent’s place for purposes of intestate succession

Question 8

What happens if there is a simultaneous death of the decedent and heir?

Answer 8

Common law: the heir’s survival must be proved by a preponderance of the evidence

Uniform Simultaneous Death Act: when there is insufficient evidence of who died first, the property will pass as though each had predeceased the other

Question 9

What is the 120 hour rule?

Answer 9

Under the USDA, an heir must be proven by clear and convincing evidence to have survived the decedent by 120 hours. In CA, this rule only applies to intestacy, not wills

Question 10

What is quasi-community property?

Answer 10

property acquired by a marital couple while living out of state that would have been community if acquired in CA

Question 11

Under intestacy, how much of the decedent’s community property is the surviving spouse entitled to?

Answer 11

the surviving spouse is entitled to the decedent’s one-half of the community property

Question 12

If the decedent is not survived by decedent, parent, or siblings, how much is the spouse entitled to?

Answer 12

all of the separate property

Question 13

If the decedent is survived by one lineal descendent, or by a parent or issue of the parent, how much is the spouse entitled to?

Answer 13

the surviving spouse gets half of the separate property

Question 14

If the decedent is survived by more than one lineal descendent, how much is the spouse entitled to?

Answer 14

the surviving spouse gets 1/3 of the separate property

Question 15

What happens if a decedent dies intestate with no heirs?

Answer 15

the property escheats to the state

Question 16

How do you disinherit children?

Answer 16

this must be done by a properly executed will. Disinherited heirs are treated as if they predeceased the decedent

Question 17

What happens when there is a step-parent?

Answer 17

A parent-child relationship between the step-parent and child is formed. This does not prevent the child from inheriting from the other biological parent

Question 18

What is the 300 day rule?

Answer 18

if a child is born within 300 days of the husband’s death, there is a rebuttable presumption that the child is the husband’s and the child will inherit as though it was born before the father died

Question 19

What is the per capita with representation method? (CA)

Answer 19

1) divide the estate equally at the first generation where a member survives the decedent
2) if there are deceased members at that generation, their shares drop down to their surviving issue
3) if a deceased member has no surviving issue, that member does not take a share

Question 20

What are the two methods of calculating the intestate shares of issue? When are they used?

Answer 20

per capita (if surviving issue are all of equal degree of kinship)
per capita with representation (if surviving issue are of unequal kinship)

Question 21

What are the three formal execution requirements (formalities) to have a valid will?

Answer 21

1) signed writing;
2) witnesses;
3) testamentary intent

Courts take either a strict or relaxed approach

The will can be signed by someone else in the testator’s presence and at his discretion

Question 22

What is the signed will requirement?

Answer 22

the will must be written/typed and signed by the testator. The signature can be on any part of the will (though a court may not give effect to words after the signature). A formal signature is not required and it just needs to indicate the testator’s desire to sign

Question 23

What is the capacity requirement for a testator?

Answer 23

the testator must be at least 18 and of sound mind

Question 24

What is the witness requirement?

Answer 24

there must be 2 witnesses present and each must sign the document (within the testator’s lifetime)

Question 25

the testator must sign the will in the presence of the witnesses

Answer 25

o

Question 26

What are the two approaches to the presence requirement?

Answer 26

line of sight (traditional)

conscience presence (CA)

Question 27

What is the line of sight approach?

Answer 27

the witness and testator must observe or have the opportunity to observe the signing of the will

Question 28

What is the conscience presence approach?

Answer 28

the signatures of the witnesses are valid as long as they are aware that they are signing the testator’s will as witnesses

Question 29

What is an interested witness?

Answer 29

A witness who has a direct financial interest under the will

Question 30

What is the common law and modern approach to interested witnesses?

Answer 30

common law: an interested witness was not competent to witness the will

modernly: there is a rebuttable presumption that the interested witness exerted undue influence. If not rebutted, then the interested witness can still receive the amount that he would under intestate succession

Question 31

What is the testamentary intent requirement?

Answer 31

the testator must have the present intent to make a testamentary gift

Question 32

When is competency measured?

Answer 32

competency is measured at the time of the signing. Subsequent incompetence will not invalidate a will

Question 33

What is the standard used in CA for determining whether the will adequately complied with the will formalities?

Answer 33

substantial compliance (harmless error doctrine). The court will admit the will to probate if there is clear and convincing evidence that the decedent intended the document to serve as her will

Question 34

What is the exception to the substantial compliance (harmless error doctrine)?

Answer 34

CA courts do not apply this approach to the testator’s signature

Question 35

What is an informal, handwritten will called?

Answer 35

a holographic will

Question 36

What are the requirements of a holographic will?

Answer 36

[S-TI-MP]

• signature
• testamentary intent
• The material provisions must be in the testator’s handwriting (e.g., who takes, what they take, in what shares)

+It does not have to be witnessed.

Question 37

What are some will substitutes?

Answer 37

• joint tenancy
• revocable trust
• pour-over-will
• payable on death clause
• deeds

Question 38

What does it mean for a will to be ambulatory?

Answer 38

wills are capable of being changed at any time until the testator’s death

Question 39

What are the three ways to revoke a will?

Answer 39

SPO [like Spoelstra getting mad]

1) by Subsequent instrument
2) by Physical act
3) by Operation of law (e.g., divorce)

Question 40

What happens if a later writing (codicil/will) is inconsistent with a prior will?

Answer 40

implied revocation

So long as it is validly executed, the later conflicting document (codicil/will) controls

Question 41

How does a testator revoke a will through physical destruction?

Answer 41

such as through intentional:

• tearing
• burning
• crossing out the document

Question 42

What happens if a will, once known to exist, is lost?

Answer 42

there is a rebuttable presumption that the testator revoked the will by physical act.

Duplicate originals can be used by the proponent but a copy of the original cannot be used

Question 43

What happens to a will upon divorce or dissolution of a registered domestic partnership?

Answer 43

all will provisions in favor of the former spouse or partner are revoked, unless there is evidence that the testator wanted those provisions of the will to survive

Question 44

What happens to codicils attached to the will when a will is revoked?

Answer 44

the codicil is also revoked

Question 45

What happens to the will when the codicil is revoked?

Answer 45

the underlying will is revived in its original form

Question 46

What happens if there is a will, a new will, then the new will is revoked?

Answer 46

the revocation of the second will does not automatically revive the first will. The first will needs to be re-executed to take effect or there needs to be extrinsic evidence to show the testator intended for the first will to be revived

Question 47

What happens if a testator revokes a will on the basis of mistake (of fact/law)?

Answer 47

Dependent relative revocation (DRR) will invalidate the mistaken revocation

Question 48

What is the key approach courts take to interpreting a will?

Answer 48

courts follow the plain meaning (even if the testator meant something else)

+extrinsic evidence is inadmissible and the court will not look beyond the four corners of the document to determine meaning

Question 49

When is it permitted to incorporate an extrinsic document that is not testamentary in nature?

Ex: “This will makes bequests in accordance with the list provided in my sketchbook, which I keep in the bottom drawer of my desk.”

Answer 49

DIE

• the Document is Described in the will with sufficient certainty as to permit its identification
• the testator Intends the document to be incorporated into the will AND
• the document is in Existence at the time of execution

Question 50

A will might leave a certain gift to “the man who is my niece’s spouse at the time of my death.” The law does not presume that the niece would marry or divorce merely to complete the terms of the will, so her marriage has independent significance and would be valid.

Answer 50

o

Question 51

What is CA’s anti-lapse statute?

Answer 51

If the gift was made to a blood relation of the testator (or of his current or former spouse or domestic partner) who predeceased the testator but left issue (children, grandchildren) who survived the testator, the issue take the gift

Ex: a former spouse would not qualify

Question 52

What happens if there is a class gift and the lapsed recipient is not protected by the CA anti-lapse statute?

Answer 52

the gift will not lapse but will go to the surviving class members

Question 53

What is a a gift of a particular piece of property?

Answer 53

specific gift

Question 54

What is a a gift of property satisfied from general assets

Answer 54

general gift

Question 55

What is a general gift from a particular source?

Answer 55

a demonstrative gift

Question 56

What is ademption by extinction?

Answer 56

when a will makes a specific devise of property, but that property is no longer in the estate at the testator’s death

Question 57

What are the two rules when dealing with ademption by extinction?

Answer 57

identity theory: the specific devise was “extinct” and the devisee takes nothing

Intent theory (CA): look to the testator’s intent at the time that she disposed of the property. Courts will try to avoid ademption if possible by identifying replacement property

Question 58

What is it called when the gift was already transferred through an inter vivos transfer?

Answer 58

ademption by satisfaction

Question 59

What is a patent ambiguity?

Answer 59

an ambiguity that is ambiguous on the face of the document

Ex: Listing the address as 123 Oak and later as 321 Oak

+like on its (ph)face

Question 60

What is a latent ambiguity?

Answer 60

an ambiguity that is not obvious on its face

Ex: devise of property “to my brother” (but testator has multiple brothers)

+LATEr you will find out there’s a problem

Question 61

What is the approach in CA and most courts for resolving ambiguities?

Answer 61

courts allow patent and latent ambiguities to be resolved with reference to extrinsic evidence

Question 62

What must be shown to reform an unambiguous will due to mistake?

Answer 62

clear and convincing evidence must be shown to establish that there was a mistake

Question 63

What is an elective share?

Answer 63

In common law states, a surviving spouse who is unhappy with his or her share under the will can take a forced share (which could disrupt the gifts to other beneficiaries), Often 1/3.

Question 64

What happens if there is a marriage/domestic partnership after the execution of a will?

Answer 64

works as a partial revocation to provide for the omitted spouse. In such cases, a spouse or domestic partner who is not mentioned in a will is entitled to an intestate share of the testator’s estate

the share taken from the decedent’s separate property cannot exceed one-half the value of the separate property in the estate (but the surviving spouse still keeps 1/2 of the community share)

Question 65

What was the common law view of an advancement to a child?

Answer 65

Any lifetime gift was presumed to be an advancement of the child’s intestate share. The child had the burden to show that the gift was an absolute gift

Question 66

What is the CA view of whether a gift is an advancement?

Answer 66

A gift is an advancement only if:

• the decedent declared in a contemporaneous writing that the gift was an advancement; OR
• the decedent’s or heir’s writing indicates that the gift should be taken into account when computing the division of property of the decedent’s estate

Question 67

How do you calculate advancements for children?

Answer 67

1) add the value of the advancement(s) back into the intestate estate
2) divide the resulting estate by the number of children taking
3) deduct the child’s advancement from the child’s intestate share

Question 68

What happens when there is an unintentional disinheritance?

Answer 68

the omitted child receives an intestate share

Question 69

What is the slayer rule?

Answer 69

a person cannot profit from murdering another. Here, it means that the beneficiary will be treated as if he predeceased the testator.

Courts do not apply the slayer rule in involuntary manslaughter or self-defense cases. The murder must be intentional and felonious

CA does not apply the anti-lapse doctrine to save a gift to a killer in favor of the killer’s issue

Question 70

What is required to disclaim a testamentary gift?

Answer 70

• in writing, signed, and filed with the court AND
• identify the decedent, describe the interest to be disclaimed, and define the extent of the disclaimer
• disclaimed within 9 months of the testator’s death

Question 71

In California, someone who is convicted of financial exploitation, abuse, or neglect of a person under their care is prohibited from inheriting from that person.

Answer 71

o

Question 72

Who has standing to challenge a will?

Answer 72

only interested parties (anyone who might get a financial benefit under the will, or someone who would take under intestate succession, but does not take under the will

Ex: someone who was a beneficiary under a prior will of the decedent

Question 73

What can the contestant ask to show that the testator lacked general testamentary capacity at the time of the execution of the will?

Answer 73

Ask whether the testator had the ability to know:

• the nature of the act
• the nature and character of her property
• the natural objects of her bounty
• the plan of the attempted disposition (closest surviving family members like spouse/children

Question 74

What is a false belief to which the testator adheres despite all reason and evidence to the contrary

Answer 74

insane delusion

Question 75

How does a contestant show that someone has an insane delusion?

Answer 75

• measure the testator’s insane delusion against that of a rational person in the testator’s position. If a rational person could not have reached the same conclusion, it is an insane delusion
• show that the insane delusion was a “but for” cause of the testamentary disposition

Question 76

What is undue influence?

Answer 76

a third party effectively controlled the testator’s decision-making process through excessive persuasion

Question 77

What are factors to show undue influence?

Answer 77

VIIE

• Victim’s Vulnerability
• Influencer’s apparent authority
• Influencer’s actions or tactics
• Equity of the result (by itself, is insufficient)

Question 78

When is there a presumption of undue influence?

Answer 78

U CR-AP

when:

• the gift is Unnatural
• the principal beneficiary has a Confidential Relationship (like lawyer, doctor) with the testator AND
• the principal beneficiary Actively Participated in making the will

+Once this is all shown, then the burden shifts to the beneficiary to show by clear and convincing evidence that there was no undue influence
+exceptions: property is less than $5k, transferor and beneficiary are blood relative or cohabitants

Question 79

What is the consequence of undue influence?

Answer 79

the beneficiary is treated as if he or she predeceased the testator to the extent the gift exceeds the beneficiary’s intestate share

Question 80

What are some of the beneficiaries who CA rebuttably presumes are invalid?

Answer 80

• the drafter of the will
• a fiduciary who transcribed the will or caused it to be transcribed
• a care custodian of the testator who is a dependent adult, if the will was executed when services were provided or within 90 days thereafter
• a person connected to the drafter, transcriber, or care custodian
• a partner or employee of the law firm of the drafter or transcriber

+All can be rebutted through clear and convincing evidence

Question 81

What are the requirements to demonstrate fraud occurred?

Answer 81

The beneficiary made the representation with:

• the intent to deceive the testator; AND
• the purpose of influencing the testamentary disposition
• and the fraud does in fact deprive the testator

Question 82

What is fraud in the inducement?

Answer 82

misrepresentation that causes the testator to make a different will than the testator would otherwise made

Ex: promising to convey the property to a friend, but the beneficiary has no intent to do this

Question 83

What is fraud in the execution?

Answer 83

Misrepresentation as to the character or contents of the will

Ex: testator has bad eyesight and the will says something different

Question 84

What is the most common remedy for fraud?

Answer 84

a constructive trust

Question 85

What is probate property?

Answer 85

property that passes by will or intestate succession

Question 86

How does non-probate property pass?

Answer 86

instruments such as:

• deed
• trust
• joint tenancy
• POD contract

Question 87

What is the basic probate process?

Answer 87

1) identify non-probate property and the rest is probate property
2) identify testate and intestate property

Question 88

Where is jurisdiction proper to handle the decedent’s estate?

Answer 88

the county in which the decedent was domiciled at the time of death

Question 89

Unless the will says otherwise, what is the order in which gifts will be abated (reduced)?

Answer 89

[I Really Got Stiffed]

1) Intestate property (least protected)
2) property in a Residuary gift
3) General bequests to non-relatives then relatives
4) Specific bequests to non-relatives then relatives

Question 90

When must a probate be challenged?

Answer 90

within 120 days after probate is opened. Otherwise, the claim is barred

Question 91

What is a forfeiture clause?

Answer 91

A clause in the will that states if a beneficiary contests the will, she will lose her share under the will.

It only applies to direct contests (forgery, lack of execution, capacity, duress, fraud, undue influence) that lack probable cause

Question 92

What is a personal representative appointed by the court called?

Answer 92

estate administrator

Question 93

What is a personal representative named in the will called?

Answer 93

estate executor

[think of the estate administrator as a government bureaucrat]

Question 94

What are the duties of the personal representative?

Answer 94

• inventory, appraise, and manage the estate
• contact interested parties, including creditors
• satisfy debts (taxes, burial expenses, family support)
• distribute remaining assets
• close the estate

Question 95

What are the duties owed by the personal representative?

Answer 95

as a fiduciary, the personal representative owes the duties of loyalty and care

No self-dealing or business with the estate

But the personal representative is entitled to reasonable compensation from the estate

Question 96

What happens if the witness requirement is not satisfied?

Answer 96

the will can still be treated as properly executed if the proponent of the will establishes by clear and convincing evidence that the testator intended the document to be his will at the time he signed it

Question 97

What are the traditional undue influence requirements?

Answer 97

[Sara Made Orange Chicken]

• susceptibility to influence
• motive
• opportunity
• causation

Question 98

When are papers integrated into the will? [doctrine of integration]

Answer 98

-they were Present at the time of execution of the will AND
the testator Intended them to be part of the will

Exs: papers folded together, stapled, papers connected by a sequence of thought

Question 99

What happens when there is a devise to A and B and B is crossed out?

Answer 99

B’s portion goes to the will residue. The portion does NOT go to A

Question 100

When writing the essay, whenever a gift is devised that consists of a house, car, stock, but does not contain a specific address or model then…

Answer 100

argue both ways (specific or general gift)

Question 101

What is exoneration?

Answer 101

exoneration applies when a gift of property is made that is subject to an encumbrance, such as a loan, and the will requires that the encumbrance be paid off so that the devisee takes the property free and clear

Question 102

What was the traditional rule on lapse?

Answer 102

traditionally, and in some jurisdictions, when a beneficiary predeceased the testator, the gift lapsed and fell into the residue/intestate succession

Question 103

What is the order in intestate succession when a person dies without a spouse?

Answer 103

• issue
• parents, if no issue
• issue of parent, if none of the above
• grandparents, if none of the above
• issue of grandparents, if none of the above
• issue, of predeceased spouse/partner, if none of the above
• next of kin

Question 104

What is required in order for the dependent relative revocation(DRR) doctrine to reinstate a revoked will?

Answer 104

The testator would not have revoked the will but for the applicable mistaken belief.

+This applies also when the second will is actually invalid and the first will is revoked
+The doctrine should be applied only if doing so honors the testator’s true intent. Therefore, if recognizing the revocation and not reviving the will better reflects the testator’s intent (e.g., the gift is decreased in the new will), do not apply DRR

Question 105

What is the approach to a wills essay?

Answer 105

1) discuss the distribution without and with a valid will
2) discuss the validity of the will (one by one) (requirements, defenses, revoked?)
3) what kind of gift (specific, general, demonstrative, residuary, intestacy)

Question 106

What happens if a will is not validly executed in another state and the decent later is domiciled and dies in CA?

Answer 106

the will is treated as valid if it meets the CA requirements

Question 107

What are things to talk about when a will is revoked?

Answer 107

• partial or complete revocation

- express or implied revocation

Question 108

A validly executed codicil can incorporate an invalid will and make the terms of the will valid

Answer 108

o

Question 109

What is abatement?

Answer 109

if the assets of the estate are insufficient to pay all debts, a court will “abate” the gifts to pay the debts

Question 110

What happens if T creates a will giving his property to “my brothers” upon his
death. His brother C died before he created the will.

Answer 110

Neither C nor his issue would be entitled to a share of the property upon T’s death. Only T’s other brothers, A and B, who were alive at the time of the will creation would take the property.

Question 111

When is an omitted spouse entitled to an intestate share?

Answer 111

Generally the omitted spouse is entitled to an intestate share UNLESS:

• the omission was intentional
• the spouse was given property outside the will in lieu of a disposition in the will
• the spouse is party to a valid contract waiving her right to a share in the estate

Question 112

What are the requirements to be an omitted child?

Answer 112

-the child is born/adopted after the will is created

+A child may have been omitted, but if the codicil happens after the child’s birth, they are no longer deemed an omitted child

Question 113

What are ways to contest a will?

Answer 113

• insane delusion
• undue influence
• testamentary capacity (18 and sound mind)

Question 114

What is per stirpes?

Answer 114

Not the typical form of distribution, but possible if that is what the will calls for. In per stirpes, the issue take in equal portions the share their deceased ancestor would have taken, if living

Question 115

What is an example of a holographic codicil?

Answer 115

A codicil that is altered with “null and void” and signed by the testator because this is a material provision

Question 116

What is the approach to revival after a later revocation or codicil?

Answer 116

Under common law, the revocation of a will or codicil that revoked another will automatically revived the original will

In CA, automatic revival no longer exists and courts require proof that the testator intended to revive the original will

Question 117

What is the Acts of Independent Legal Significance doctrine?

Answer 117

When a person’s act impacts the disposition of a will, it is presumed that the action was not done for testamentary reasons

Question 118

A presumption of undue influence arises when the principal beneficiary under a will 1) is in a confidential relationship to the testator, 2) participated in executing the will, and 3) the gift to the beneficiary is unnatural.

Answer 118

o

Question 119

What happens if a church was a beneficiary, but the church no longer exists at the time of the testator’s death?

Answer 119

the anti-lapse statute will not apply. The gift will lapse

Question 120

What happens if a will was made outside of CA?

Answer 120

the will is likely valid. It is valid if:

• it is in conformity with CA law
• it is in conformity with the law of the place where it was made
• it is in conformity with the law of the state where the testator was domiciled at the time of death

Question 121

if a will was executed in duplicate, destruction of one duplicate by the testator with the intent to revoke the instrument will revoke all duplicates of the will.

Answer 121

o

Question 122

California does not require that a holographic will be dated. In the event that another will is inconsistent, there is a rebuttable presumption that a non-dated holographic will predates the other will signed by the testator.

Answer 122

o

Question 123

At death, the surviving spouse does not have any interest in the decedent’s SP unless the decedent dies intestate.

Answer 123

o

Question 124

What is it called when there is writing on the face of the will? (like crossing off someone’s name)

Answer 124

interlineation

interlineations that change the amount made after the execution of an attested will are not given effect unless they meet the requirements of a holographic codicil. Here, T’s crossing out of “$10,000” and subsequent writing of “$12,000” above it can be construed as an interlineation. However, due to the fact it is a change to the amount of the bequest, it will not be given any effect unless it meets the requirements of a valid holographic codicil.

Question 125

When does the CA omitted child statute NOT apply?

Answer 125

• it appears that the omission of the child was intentional;
• the settlor had other children at the time the testamentary device was executed and left substantially all of his estate to the other parent of the omitted child; OR
• the settlor provided for the child outside of the testamentary device and intended this to be in lieu of a provision in the testamentary device.

Question 126

How much is the omitted child entitled to?

Answer 126

a share equal to that which the child would have received if the decedent had died intestate. Satisfying the omitted child’s share may cause other gifts in the will to abate