Wills

Question 1

Wills: What are the requirement for a valid will?

Answer 1

1) Legal Capacity
2) Testamentary Capacity (Mental Capacity)
3) Testamentary Intent
4) Formalities (Attested v. Holographic)

Question 2

Will: Legal Capacity?

Answer 2

18 years or older

Question 3

Wills: Testamentary/Mental Capacity?

Answer 3

Testator must have the mental capacity to

• understand the nature of the act
• know the general nature and extent of testator’s property
• recognize the natural objects of testator’s bounty

Question 4

Wills: Testamentary Intent?

Answer 4

Testator must have a present intent to make a particular instrument his will.

Question 5

Wills: Attested Will Formalities

Answer 5

An attested will must be

1) in writing
2) signed (or acknowledged) by the testator in the present of at least two witnesses
3) two witness must sign during testator’s lifetime
4) witnesses must understand that instrument is testator’s will

Question 6

Wills: What is the interested witness presumption?

Answer 6

A gift to a person who also serves as a witness of a will is presumed to have been procured through duress, menace, fraud, or undue influence.

interested witness may take under will if presumption is rebutted, there are at least two other witnesses, or interested witness may receive up to intestate share.

Question 7

Will: Holographic Will Formalities?

Answer 7

A holographic will is valid if material provisions are in testator’s handwriting and the instrument is signed by the testator.

Question 8

Wills: Harmless Error Rule

Answer 8

In CA, if an instrument fails to meet the will’s formality requirements, the instrument may still be probated if there is clear and convincing evidence of the testator’s intent for the instrument to serve as the testator’s will.

Question 9

Wills: Choice of Law

Answer 9

Real property- law where land is

personal property- law of decedent’s domicile at death

Saving statute- a will is valid regardless of where it is executed if it complies with CA law, the law of the state where it was executed, or the law where the testator domiciled when the will was executed.

Question 10

Wills: Ambiguity

Answer 10

Courts will allow extrinsic evidence to solve a patent (on its face) or latent (as applied) ambiguity.

Modernly, courts will create ambiguity even where it does not exist.

Question 11

Wills: Methods of Validating Trust

Answer 11

ALWAYS DISCUSS ALL THREE

1. Incorporation by reference (i.e., trust exists when will is executed, its clearly identified in the will, and T intends to incorporate)
2. Facts of independent significance (i.e., trust is an instrument independent of the will)
3. UTATA Statute: pour over provision is valid as long as the terms of the trust are set forth in a written instrument that was executed before, concurrently with, or within 60 days of the will.

Question 12

Wills: Integration

Answer 12

The papers or writings that were actually present at the time of execution and that the testator intended to constitute as his will are deemed to be part of the will.

Question 13

Wills: Incorporation by Reference

Answer 13

A document may be incorporated by refence so that it is considered part of the will if the documents exists at the time the will is executed, the document is sufficiently described in the will, and the testator intended to incorporate the document.

Question 14

Wills: Act/Facts of Independent Significance

Answer 14

The court may fill in certain blanks in the testator’s will by referring to document or acts effectuated during the testator’s lifetime, that have a sufficient significance apart from its impact on the will, typically used to identify the beneficiary or the gift.

Question 15

Wills: Pour Over Will

Answer 15

A pour over provision is valid as long as the terms of the trust are set forth in a written instrument that was executed before, concurrently with, or within 60 days of the will. If the trust is revoked the gift fails.

Question 16

Wills: Separate Writing Disposing Tangible Property

Answer 16

Testator’s will may refer to a written statement or list disposing of property even if the list did not exist at the time of execution if it is in a dated writing, handwritten or signed, describes property with reasonable certainty, and no single item exceed $5K and the value of entire list is not over $25K.

Question 17

Will: Conditional Will

Answer 17

A conditional will requires that certain condition occur before a gift is made, a presumption against conditional will arises.

Question 18

Wills: Codicil

Answer 18

A codicil is testamentary instrument that amend, modifies, or revokes a will.

Question 19

Wills: Republication by Codicil

Answer 19

A will republishes a will as of the date it is executed except for the parts that are inconsistent.

Question 20

Will: Contractual Will

Answer 20

A contract to make, not to make, or to not revoke a will is valid if there is

1. a provision of a will or other instrument stating material provision of contract
2. express reference in the will or other instrument of contract and extrinsic evidence OR
3. a writing signed by the decedent evidencing the contract.

Question 21

Will: Joint Will v. Reciprocal

Answer 21

Joint- single document containing will or two or more persons (DON’T DO IT)

Reciprocal (Mutual)- two documents containing parallel provision

Question 22

Wills: Classification of Gifts

Answer 22

Specific (particular item distinct from all other object in estate)

General (gift of general asset, typically $, payable out of estate)

Demonstrative (gift of money from designated fund)

Residuary (the balance after paying debt, expenses, taxes, and above gifts)

Question 23

Wills: Ademption by Extinction

Answer 23

Only applies to specific gifts.

If specific gift is not in the testator’s estate at theft the gift is deemed and beneficiary takes nothing.

Exception

• if gift was sold or condemned and money still owed and traceable, beneficiary is entitled to the money still owed
• courts consider the testator’s intent to adeem

Question 24

Wills: Gift of Corporate Securities

Answer 24

Can argue that they are specific or general.

If specific, beneficiary is entitle to ownership of a new entities share if the new entity is the result of merger or consolidation of old entity.

Question 25

Wills: Ademption by Satisfaction

Answer 25

A testator will be deemed to have prepaid or satisfied a gift to any of the beneficiaries of the will by transferring the gift while the testator was alive only if the testator provides for satisfaction in the instrument itself or a contemporary writing or the beneficiary acknowledges in writing that the gift is one in satisfaction.

The property will be valued as of the time the beneficiary came into possession or enjoyment of the property or the time of the death of the testator.

Question 26

Wills: Liens on Devised Property

Answer 26

Liens on devised properties will not be exonerated unless the will directs it.

Question 27

Wills: Abatement

Answer 27

If the estate’s assets are insufficient to pay all claims or satisfy all bequest the gifts will be reduced in the following order: 1) the residuary estate 2) general gifts to nonrelatives 3) general gifts to relative 4) specific and demonstrative gifts to nonrelatives 5) specific and demonstrative gifts to relatives.

Question 28

Wills: Lapse

Answer 28

If a beneficiary of a will dies before the testator, the gift to the beneficiary lapses or fail. The lapsed gift goes to the residue or, if gift is the residue, it is distributed under the rules of intestacy.

Question 29

Wills: Anti-Lapse

Answer 29

Under California law, if the beneficiary predeceases the beneficiaries gift will not lapse if if the predeceased beneficiary was kindred, or a blood relative, of the testator or of the surviving spouse (but not a spouse) and the predeceased beneficiary left descendants. The beneficiary’s descendants take by right of representation.

Question 30

Wills: Lapsing of Class Gift

Answer 30

Absent a contrary provision, if a will makes a gift to a class and a class member predeceases the testator, only the living members take the gift unless the anti-lapse statute applies. Under the rules of convenience, a class closes as soon as one member is entitled to possession.

Question 31

Will: Slayer Rule

Answer 31

A person who feloniously and intentionally kills the decedent is not entitled to any property or benefit the killer would otherwise acquire upon the decedent’s death.

Question 32

Will: Revocation Upon Divorce

Answer 32

Upon divorce, all provisions in favor of a former spouse are revoked unless the will expressly provides otherwise or the spouses remarry.

Question 33

Wills: Revocation by Physical Act

Answer 33

1. Will is burned, torn, cancelled, obliterated, or destroyed
2. T intends to revoke the will by his physical act
3. T performs the act, or directs someone to perform the act for him in testator’s presence

Question 34

Wills: Revocation by Physical Act on Duplicate

Answer 34

Revocation on a duplicate original revokes all duplicate originals.

Question 35

Wills: Revocation by Subsequent Will/Codicil

Answer 35

A will may be revoked in whole or in part if the terms of a later will or codicil expressly or implicitly makes a disposition of property that is inconsistent with the earlier will or codicil.

Question 36

Will: Revocation Presumptions

Answer 36

Non revocation is presumed if the will is found in normal location and no suspicious circumstances arise.

A presumption of revocation exist if testator was competent until death, the will was in testator’s possession last, and neither the will or a duplicate can be found or the will is found in damaged formed.

Question 37

Wills: Revocation by Condition

Answer 37

T may revoke a will by an express provision upon the happening of a named event.

Question 38

Wills: Revival of a Will

Answer 38

If T executes will 1, then executes will 2 revoking will 1, and later revokes will 2.

Will 1 is revive if there is enough evidence that T intended to revive will 1.

If Will 1 revoked by physical act, no revival.

Question 39

Wills: Dependent Relative Revocation (DRR)

Answer 39

If the testator revokes his will on the mistaken belief that an alternate disposition would be valid and but for the mistake the testator would not have revoked the revocation is invalidated.

Question 40

Wills: Who can contest a will? when?

Answer 40

Potential intestate heirs or beneficiaries of prior wills

Must contest 120 days after will is admitted to probate

Question 41

Wills: Insane Delusion

Answer 41

The entire will, or a particular disposition affected by the delusion, will be invalidated if the testator held, as a product of a sick mind, a belief in facts that do not exist and that no rational person would believe existed and such belief caused the testamentary disposition.

Question 42

Wills: Fraud

Answer 42

Fraud is the willful misrepresentation of a material fact intendent, and that does, induce reliance that leads to damages. If the testator was willfully deceived as to the character or content of an instrument it is fraud in the execution and the entire will is invalid. If the testator was deceived bout the material facts of the disposition (i.e. beneficiary) only that portion is void.

Question 43

Wills: Undue Influence

Answer 43

Undue influence exist if (1) influence was exerted on testator (2) the effect of influence was to overpower the mind and free will or the testator and (3) the product of the influence was w will that would not have been executed but for the influence.

1. Prima Facie Case
2. Case Law Presumption
3. Statutory Presumption

Question 44

Wills: Undue Influence - Prima Facie Case

Answer 44

A will, or a provision therein, is prima facie the result of undue influence, an invalidates the gift, if SOAR,

Susceptibility
Testator was Susceptible to undue influence.

Opportunity
The wrongdoer had an opportunity to exert undue influence.

Active Participation
The wrongdoer actively participated in exerting undue influence.

Unnatural Result
The resulting disposition was unnatural.

Question 45

Wills: Undue Influence - Case Law Presumption

Answer 45

A will, or a provision therein, is presumed to be the result of undue influence and invalidates the gift if CAR

Confidential Relationship
A confidential relationship existed between the testator and the beneficiary who is alleged to have exercised undue influence

Active Participation
The alleged wrongdoer actively participated in a wrongful act to get the gift

Result Unnatural
The resulting disposition is unnatural.

Question 46

Wills: Undue Influence - Statutory Presumption

Answer 46

CA presumes undue influence if there is a gift to:

1. person who drafted/transcribed the document
2. care custodian
3. person who owed a fiduciary relationship or
4. spouse/partner/relative/etc. of either 1 or 2

Question 47

Wills: Mistake

Answer 47

If mistake in execution, no testamentary intent, will is entirely void.

Question 48

Wills: Omitted Child

Answer 48

Under CA law, if a child is unintentionally omitted from the decedent’s last testamentary instrument, the child is entitled to an intestate share of the decedent’s estate.

The surviving child will not receive an intestate share if the decedent intended to omit the surviving child, the decedent provided for the surviving child through another source, or if the decedent had one more children, the decedent devised a substantial part of his estate to the other parent of the omitted child.

Question 49

Wills: Omitted Spouse

Answer 49

Under CA law, if a spouse is unintentionally omitted from the decedent’s last testamentary instrument, the spouse is entitled to an intestate share of the decedent’s estate.

The surviving spouse will not receive an intestate share if the decedent intended to omit the surviving spouse, the decedent provided for the surviving spouse through another source, the spouse waives in writing.

Question 50

Wills: Intestacy- When?

Answer 50

If died without a will, or will is invalid in whole or in part and cannot be probated.

Question 51

Wills: Intestacy- Applicable Laws

Answer 51

personal property apply law for state where domiciled at death.

real property apply law of where property lays.

Question 52

Wills: Intestacy- Surviving Spouse Intestate Share

Answer 52

Surviving spouse inherits decedent’s 1/2 share of CP and Q-CP.

100% of decedent SP, if decedent has no children, no parents, or descendants of parents.

50% of decedent’s SP, if decedent is survived by 1 child, descendants of one predeceased child, or no descendants but a parent or descendent of a parent.

33% of decedent’s SP, if decedent is survived by 2 or more children, one child and descendent of a predeceased child, or descendants of two or more predeceased children.

Question 53

Wills: Intestacy- Descendant’s Intestate Share

Answer 53

Descendant’s receive all of decedent’s property that does not go to spouse by per capita right of representation.

Per capita means the estate will be distributed equally at the first generation where there is one or more descendants alive, the share of deceased persons is treated as one pot and dropped down and divided equally amongst the next generation.

Question 54

Wills: Intestacy - Ancestors and Collaterals

Answer 54

If decedent is not survived by descendants, for priority

1. Parents
2. Descendants of Parent
3. Grandparents
4. Descendants of Grandparent
5. Descendants of Predeceased Spouse
6. Next of Kin
7. Escheats to State

Note: If descendant inherited property from previously deceased spouse, the property be distributed to previously deceased spouse heirs if its real property inherited within 15 years or personal property within 5 years.

Question 55

Wills: Intestacy- Adopted Children

Answer 55

An adopted child is deemed a decedent of the person who adopted her, the same as a natural child.

An adopted child severs the relationship between the natural parent and the adopted person, and thus the adopted person does not inherit from the natural parent unless (1) the natural parent and adopted person lived together at any time as parent and child or the natural parents lived together at the time the child was conceived and one parent died prior to the birth of the child and (2) the adoption was by the spouse or domestic partner.

Neither a natural parent nor a relative of a natural parent (except for a blood brother or sister of the adopted person or the issue of that person) inherits from or though the adopted person on the basis of a parent and child relationship between the adopted person and the natural parent unless the adoption is by the spouse or surviving spouse of the parent.

Question 56

Wills: Intestacy- Stepchildren and Foster Children

Answer 56

As natural children if (i) relationship began when child was young, (ii) relationship continued throughout the parties’ lifetime, and it is established by clear and convincing evidence that the stepparent or foster parent would have adopted, except for a legal barrier.

Question 57

Wills: Intestacy- Non-marital Children

Answer 57

California law ignores the marital status of the parents. It only analyzes whether a parent/child relationship was formed.

Question 58

Wills: Intestacy- Posthumous Children

Answer 58

Children of the decedent conceived before the decedent’s death but born thereafter inherit as if they had been born in the lifetime of the decedent.

A child of the decedent conceived and born after the decedent’s death is treated as if the child had been born during the decedent’s lifetime if descendent authorized in signed and dated writing use of genetic material the person with control gave notice of possible of birth within 4 months of issuance of death certificate, and child is conceived within 2 years of issuance of death certificate.

Question 59

Wills: Intestacy- Advancement

Answer 59

Under the rules of intestacy, an intervivos gift is considered an advancement to an heir if there is evidence, in writing, that the decedent intended the gift to be an advancement. The property is to be valued as of the time the heir came into possession of the property or the time of death of the decedent.

If a gift is treated as an advancement it is accounted for in distributing the decedent’s estate by bringing it into hotchpotch.

Question 60

Wills: Unworthy Heirs

Answer 60

Prohibited from taking intestate share

Slayer’s

Bad Parent (did not acknowledge , abandoned for 7 years, rights were terminated by court)

Abuse/Neglect of Elderly

Question 61

Wills: Intestacy-Survival

Answer 61

Under the rules of intestacy, a person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for the purpose of intestate succession unless the 120-hour rule would result in escheat to the State.

Question 62

Wills: Disclaimer

Answer 62

A beneficiary or heir may disclaim any interest that would otherwise pass to the person from the decedent’s estate. The disclaimer must be in writing, signed by the disclaiming party, identify the decedent, describe the interest being disclaimed, notarized, and state that there is a disclaimer and the extent of it.

A disclaimer is irrevocable and a gift cannot be disclaimed once accepted.

Question 63

Wills: Gift Causa Mortis

Answer 63

A gift made in contemplation of immediate death. If person makes a gift because they believe they are going to die it is valid, if the person does not die then they can revoke the gift.