Wills

Question 1

California courts will probate a valid will if it was validly executed as per the laws of

Answer 1

1) California,

OR

2) per the laws of the state where the decedent was present at the time the will was executed under the full faith and credit clause

OR

3 laws of the state where the decedent was domiciled at the time of the will’s execution or death.

Question 2

How do you know if it is valid will to be executed in CA law

Answer 2

must be written and signed by the T or at the T’s direction

Must be witnessed by 2 disinterested witness who sign in the T’s lifetime and understand they are signing a will

T must have testamentary intent

Know the assets contained in her estate and the natural bounty of her estate

Question 3

To show that the devisee had Testamentary capacity, you must prove that

Answer 3

(1) be over 18;
(2) be of sound mind;
(3) understand the nature of their assets and
the extent of their bounty (those who could possibly receive under the will); and
(4)understand that they are creating a will.

Question 4

2 disinterested witness (conscious presence test)

Answer 4

The witnesses do not need to be aware of the actual contents of the will, such as which people get which devices, but they must be generally aware that the document they are
signing is a testamentary instrument and that the T has signed it

Question 5

Holographic will

Answer 5

have the material provisions in the testator’s handwriting

signed by the testator.

no witness or date requirement.

There is a requirement that the testator intend the document constitute a testamentary instrument

Question 6

Ommitted spouse is one that is married with the devisee after the execution of the testators will and the spouse is not mentioned in the will. An ommitted spouse will take unless

Answer 6

intetional for spouse not to take

Spouse was given property outside the will

Spouse is a party to a valid K waiving her right to the sare in the estate

Deceedent died within less than 6 months after the marriage commenced and there is clear evidence of fraud and undue influence

Question 7

Omitted Child

Answer 7

A child who is omitted under a will is entitled to an intestate share, unless
the omission was intentional, the decedent had other children when the will was made
and left substantially all of his assets to their surviving parent, or provided for the child
outside of the will, or did not know the child existed

Question 8

Substantial compliance doctrine

Answer 8

If a will is not executed in compliance with the law, the will is treated as if it had been executed in compliance if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended it to constitute the testator’s will.

Question 9

Revocation of a will or will clause can be revoked by

Answer 9

physically, expressly or impliedly

Question 10

Physical revocation

Answer 10

some physical act, such as tearing, crossing out, obliteration, destruction, or burning.

Question 11

Express revocation

Answer 11

occurs where a subsequent will specifically
disavows a previous wil

Question 12

Implied revocation occurs

Answer 12

where a subsequent will contains clauses or gifts which are inconsistent with the previous will, such that they cannot both
exist at the same time. In these cases, the latter will controls.

Question 13

Under California law, a will can be amended, revoked or otherwise modified in whole or part by

Answer 13

a subsequent codicil, provided it is validly executed.

A validly appointed conservator can make a will or codicil for a now-disabled / incompetent person.

Question 14

Case Law indicates that Undue infullence can happen in the following three ways:

Answer 14

Where one has a confidential relationship between the Testator and the person accused of having undue influence

Active participation by the person causing undue influence

If there was an unnatural gift because of the undue influence

Question 15

To take under a will, the beneficary must be

Answer 15

ascertainable

Question 16

Usually all of the material terms of the will must be

Answer 16

within the will itsel and EE is not allowed

Question 17

Theory of acts or facts of independent significance

Answer 17

the court may use external facts to fill in the
gaps of a will if the external facts would be in existence regardless of the will

Question 18

when you revoke one copy of the will the presumption is that

Answer 18

you revoked the other

Question 19

Ademption by extinction presumes that the

Answer 19

gift fails

Question 20

Exceptions to ademption by extinction

Answer 20

1) when the stock is changed to another form of stock through merger etc
2) when the executor of the estate sells the property, and
3) when Testator receives condemnation proceedings and there’s no issue of traceability.

Question 21

What happens when the T doesnt devise her entire estate using her will

Answer 21

remaining goes to her heirs via intestate sucession

Question 22

Intestate sucession

Answer 22

spouse is entitled to all of a testator’s separate property if the testator didn’t leave behind any parents or issue, 1/2 of the testator’s separate property if the testator left behind one child, and 1/3 of the testator’s separate property if the testator left behind
more than one child

Question 23

A writing can be incorporated by reference into a will if

Answer 23

(1) there is a writing,
(2) itexisted at the time of the will’s execution,
(3) it is specifically referenced in the will, and
(4) the testator had the intent to incorporate the writing.

Question 24

Prima Facie case for Undue influence

Answer 24

V’s vulnerability and whether the influence knew or should have known about the v’s vulnerability

influencers apparent authority

Influence actions or tactics

equity of the result

Question 25

Statuory Undue Influence is presumed if the

Answer 25

drafter of the will is also the beneficiary of the will

Question 26

CA Anti-Lapse

Answer 26

which allows for the issue of a kindred beneficiary to take, despite the fact that he or she may have predeceased the testator.