WILLS

Question 1

Omitted

Answer 1

A child born or adopted before all testamentary instruments are executed and not provided for in any instrument is omitted

Question 2

Omitted Child Receives:

Answer 2

Intestate share, unless 1 of the 3 exceptions apply (then child gets nothing)

(1) the intent to disinherit appears on the will itself
(2) T provided for the child by transfer outside the will & intended that transfer be in lieu of inheritance
(3) T had one or more children, and devised most of his estate to the parent of the omitted child **do math to show majority of estate

Question 3

Pour Over Wills

Left out

Answer 3

Where a will leaves out all or part of the testator’s property to the trustee of an inter vivos trust

Question 4

3 Methods for validating a “pour-over” provision

how do we know the trust has the property

Answer 4

DISCUSS ALL 3 and say which one would work / not work

(1) Incorporation by reference (trust is incorporated in the will, unless trust was amended after will)

(2) trust is a fact of independent significance; OR

(3) Uniform Testamentary Additions to Trust Act (by statute, validates pour over provision where trust is in existence at time of execution)

Question 5

Valid Holographic Will

Answer 5

(a) can be signed anywhere in the will; and
(b) material provisions are in T’s own handwriting: the gifts made, the beneficiaries names, and t’s signature

**date not required, but lack of is problematic (if no date & its established that T lacked capacity at any time during which will might have been made, then the holographic will is invalid) / unless established that executed at time when T had capacity

Question 6

4 Methods for Revocation

PAOW

Answer 6

(1) Physical Act
(2) Subsequent written instrument
(3) operation of law
(4) ademption

Question 7

Physical Act: Revocation

Answer 7

(a) will must be [burned, torned, scribbled out, destroyed / erased]

(b) testator must have simultaneous intent to revoke; and

(c) must be done either by the testator, or someone in T’s presence and at his direction

Question 8

Cancellation

Answer 8

Cancellation occurs when the testator crosses out a provision of his will. The crossed-out portion of the will does not apply to the will unless revived or reinstated via dependant relative revocation (‘DRR)

Crossing out / lining through [can’t be used to increase gift]

Writting null and void = valid cancellation, cancelled portion goes to residuary devisee or by intestacy

Question 9

Interlineation

Answer 9

Interlineation occurs when the testator writes a term or provision into a valid will, typically after cancelling a prior provision. Generally, interlineated provisions are not valid unless the interlineation is a valid holographic codicil.

Question 10

Approach for Cancellation, Interlineation, Holograohic Codicil and DRR

Answer 10

4 issue headings

(1) Cancellation [irac and describe ONLY what is crossed out]

(2) Interlineation [IRAC and describe what was handwritten into will]

(3) Holographic Codicil [IRAC and analyze material provisions and whether they are all handwritten]

(4) DRR [if OG gift is revoked, analyze DRR to see if saves the gift]

Question 11

Holographic Codicil

Answer 11

A holographic codicil is a handwritten testamentary instrument that modifies, amends, or revokes a valid will. In order for the holographic codicil to be valid, it must be

(a) signed by the testator and

(b) all the material provisions, such as the beneficiary and the subject matter of the devise, must be in the testator’s handwriting.

A typed will w/ handwritten interlineations (about gifts and beneficiares) is not valid (invalid holographic will), unless the material provisions are also in handwriting as required

PLUS, OG gift would be revoked, unless DRR [if OG gift was to give less and theres an interlineation to increase the gift, then apply DRR and save OG gift)

If the OG gift was to give more and then interlineation to give ess, then DRR doesn’t apply, ands the entire gift is revoked (devisee gets nothing), unless the entire will was holographic.

Question 12

DRR – Validity of Subsequent Instrument

Answer 12

Will #2 is invalid and fails to effectuate testator’s intent

Timeline–> Testator makes Will 1, then makes will 2, then revokes 1 (bc he thinks will 2 is gucci and captures his intent, but will 2 is either invalid or fails to effectuate T’s intent

DRR allows the court to ignore the revocation of the will #1 on the grounds that testator revoked will #1 bc he mistakenly believed will#2 effectuated his intent

Question 13

Revival

Answer 13

If T makes will#1, revokes it through will #2, then destroys will #2, will #1 is not automatically revived, unless T manifests the intent to do so.

Revival – destroys will#2
DRR– T wanted will#2 but failed to capture T’s intent or invalid

Compare w/ DRR

Question 14

Widow’s Election

Answer 14

In California, a surviving spouse has a right to the decedent’s spouse’s share of community property resulting in the surviving spouse having a right to 100% of the community property since she would already retain her original 1/2 share. When the decedent-spouse attempts to devise a portion of property in a will that is CP, the surviving spouse may take under the will or elect to take her share of CP

Question 15

Per Capita Distribution

Answer 15

In CA, the default method of distribution is ‘per capita’ unless the will specifies per stirpes

per capita means to each person equally starting at the first generation where someone is living. if a person from that generation is deceased, then their share goes to their issue to be given split equally.

Question 16

Lapse Provision

Answer 16

When a will devises a gift to a deceased person, that gift is said to have lapsed.

Question 17

Anti-Lapse

Answer 17

in CA, there is an anti-lapse statute which allows a gift to the beneficiary who predeceases the testator to pass onto the beneficiary’s issue.

Question 18

General Devise

Answer 18

A general devise is a gift under a valid will that may be paid out or given from the general value of the estate, not from a specific source.

Question 19

Specific Devise

Answer 19

A specific devise is a gift of a particular item

Re: Stocks When a beneficiary is devised specific shares of stock from the testator’s estate, the beneficiary has a right to all cash and stock dividends that result from that stock, so long as the stock is still held in the testator’s name.

Question 20

Residue

Answer 20

A residue is the gift from the testator’s estate of all property not otherwise devised under the will.

Question 21

Widows ELECTION

Answer 21

In California (“CA”), a surviving spouse has a right to the decedent spouse’s share of community property resulting in the surviving spouse having a right to 100% of the community property since she would already retain her original 1⁄2 share. When the decedent spouse attempts to devise a portion of property in a will that is community property, the surviving spouse may take under the will, or elect to take her share of community property.

Question 22

Per Capita— Method of Distribution

Answer 22

In California the default method of distribution is ‘per capita,’ unless the will specifies ‘per stirpes. Per capita means to each person equally starting at the closest generation with a living member. If a person from that generation is deceased then their share goes to their issue to be split equally.

Question 23

Lapse Provision

Answer 23

When a will devises a gift to a deceased person, that gift is said to have lapsed

Question 24

General Devise

Answer 24

General Devise
A general devise is a gift under a valid will that may be paid out or given from the general value of the estate, not from any specific source.

Question 25

DRR

Answer 25

Dependent Relative Revocation (“DRR”)
If a testator (a) revokes his will, or a portion thereof, (b) in the mistaken belief that a substantially identical will or codicil effectuates its intent, then by operation of law the revocation of the first provision will be reversed.

SAVES THE OG GIFT.

Question 26

Pretermitted Child & Rights

Answer 26

A pretermitted child is a child born or adopted after the will was made, not provided for in the will.
A pretermitted child has a right to an intestate share, and is given that gift by abating the other gifts under the will. However, a pretermitted child will not take an intestate share if: (1) the intent to disinherit appears on the will itself, (2) the testator provided for the child by transfer “outside of the will and intended the transfer to be in lieu of inheritance, or (3) the testator had one or more children and devised most of his estate to the parent of the pretermitted child”