Wills

Question 1

Choice of Law

Answer 1

A will is valid in CA if it is executed in accordance with:
(1) California law,
(2) law of state where it is executed, or
(3) law of the place of domicile or abode or where T is a national at the time of execution or death.

Question 2

Will Formation

Answer 2

(1) WRITING
(2) SIGNED by T or on T’s behalf at T’s direction,
(3) signed or acknowledged by T in joint presence of at least TWO witnesses (who witness it),
(4) SIGNED by the Ws during T’s lifetime, and
(5) UNDERSTOOD to be T’s will by the Ws when witnessed.

Question 3

Harmless Error

Answer 3

If T dies on or after Jan 1, 2009

MAY be admitted to probate if proponent establishes by CLEAR & CONVINCING evidence that at time of signing, T intended instrument to constitute T’s will.

Question 4

Interested Witnesses

Answer 4

There is a presumption of undue influence as to the excess (more than intestacy)

Gift lapses if proponent doesn’t overcome presumption.

Question 5

Holographic Wills

Answer 5

Holographic will or codicil requires
(1) T’s signature and
(2) all material provisions to be in T’s handwriting.

Question 6

Material Provisions

Answer 6

(1) declaration as will;
(2) dispositive clauses (naming of bequests);
(3) naming of executors, trustee, etc.;
(4) attestation clause; and
(5) signature.

Question 7

General Capacity

Answer 7

T must understand
(1) the nature of the act (of making a will);
(2) the nature and extent of their property/assets; and
(3) the natural objects of their bounty (close family)
(4) plan of attempted disposition.

Question 8

Common Law Undue Influence

Answer 8

Presumed UI if B
(1) confidential relationship to a T;
(2) participates in some way in “procuring” a gift; and
(3) unnatural bequest

Question 9

Statutory Undue Influence

Answer 9

Presumed UI if B
(1) an attorney or caregiver,
(2) the drafter of the instrument, or
(3) in a fiduciary relationship with T and transcribes the instrument.

Question 10

Standard Undue Influence

Answer 10

Absent presumption of UI, challenger to will must show:
(1) there was influence exerted on T;
(2) that overpowers free will and mind of T;
(3) product of influence was will which wouldn’t have been executed but for influence.

Question 11

Standard UI Factors

Answer 11

(1) susceptibility of T
(2) B’s relationship & opportunity
(3) B’s disposition to influence T, and utilized actions and tactics designed to exert influence
(4) gift to B was inequitable

Question 12

Fraud

Answer 12

Execution: false representations re the character or content of an instrument

Inducement: false representations concerning facts that influence T’s motivation.

Question 13

Mistake

Answer 13

Execution: Where there’s mistake in execution as to character of document (thought wasn’t a will), it cannot be probated for lack of intent to create will

Inducement: Where there’s mistake in the inducement (based on a mistaken belief in untrue facts), no relief unless the mistake and the disposition T would have made but for mistake appearing on face of instrument.

Question 14

Substituted Judgment

Answer 14

Conservator can make a will or trust, or revoke or modify a trust for a conservatee.

Court can only approve SJ:
(1) after noticed hearing, and only if
(2) conservatee doesn’t oppose the proposed act or lacks legal capacity and
(3) conservatee will be adequately provided for notwithstanding the act.

Question 15

Revocation Methods

Answer 15

Three methods
(1) by a subsequent will;
(2) by a physical act (cancellation, tearing, blotting out, etc.); or
(3) by operation of law

Question 16

Striking Out Individual Gift

Answer 16

Strike out of individual bequest is effective as to individual bequest. Need to meet formalities to add. But strike out of one numeral ($1,000 > $100) is permitted.

Question 17

Revival

Answer 17

Where Will 2 revokes a Will 1, and then Will 2 is itself is revoked by physical act, Will 1 is revived if T’s intent to do so is shown by
(1) the circumstances of the revocation or
(2) from T’s contemporaneous or subsequent declaration.

Can use Extrinsic Evidence to show intent.

Question 18

Will 2 Revoked By Will 3

Answer 18

provisions of Will 1 only given effect if Will 3 actually republishes those provisions of Will 1 or otherwise explicitly states Will 1 is revived.

no extrinsic evidence

Question 19

Dependent Relative Revocation

Answer 19

Rule of 2nd best.

When T revokes part/all of will on mistaken belief that NEW disposition, made concurrently, is valid, court will give effect to revoked portion if it is consistent with what the court determines was testator’s intent.

(Revocation and making of new disposition must be simultaneous.)

Question 20

Codicil

Answer 20

Codicil amends prior will, requires same formalities as will. Codicil is admissible to probate by itself and republishes the date of the will.

Question 21

Integration

Answer 21

The will consists of all papers or writings
(1) actually (physically) present at the time of execution of will and
(2) that T intended to constitute her will.

Presumed when physically connected OR internal sense of connectedness.

Question 22

Incorporation by Reference

Answer 22

Separate writing may be incorporated into will by reference if
(1) incorporated writing is in existence as of execution date of will,
(2) will shows T’s intent to incorporate writing, and
(3) writing sufficiently described in will.

Question 23

Acts of Independent Significance

Answer 23

Court may resolve ambiguity in will by referring to documents or acts effectuated during T’s lifetime, so long as docs/acts are created/done for non-testamentary purpose

Question 24

Ambiguity & Extrinsic Evidence

Answer 24

Extrinsic evidence is admissible to explain any ambiguity in the will – latent (not on face) or patent (on face).

EE is not admissible to show a will has a meaning to which it is not reasonably susceptible.

Question 25

Specific Legacy

Answer 25

A specific legacy is a gift of a particular item of property distinct from all other objects in T’s estate

Question 26

General Legacy

Answer 26

A general legacy is a gift of general economic benefit (e.g., cash), payable out of the general assets of the estate.

Stock is considered general unless it says “MY” stock or its in a close corp

Question 27

Increase/Accretion

Answer 27

Applies where specific gift increases in number or amount. Majority/CA rule is that increase of specific gift goes to beneficiary of specific gift.

Question 28

Ademption

Answer 28

Extinction: Occurs when specific gift is no longer owned by T at time of T’s death.

Satisfaction: T gave be a subsitute during T’s lifetime.

Question 29

Simultaneous Death

Answer 29

If T and B die simultaneously, or it can’t be determined which one died first, B is deemed to predecease T, unless you have C&C evidence B did not.

Question 30

Lapse

Answer 30

If B predeceases T, the gift lapses and goes into residue, and to intestacy if already in residue.

Question 31

Anti-Lapse

Answer 31

Anti-lapse statute applies if predeceased B

(1) is kindred of testator/trustor or testator’s/trustor’s (dead or ex) spouse or domestic partner (spouse is not kindred); and

(2) left issue surviving them.

Anti-lapse does not apply if will evidences a contrary intention.

Question 32

Surviving spouse, no surviving family

Answer 32

If decedent leaves no issue, parent, sibling, or issue of a deceased sibling, then surviving spouse, if any, gets the decedent’s share of the CP, and all decedent’s SP.

Question 33

Surviving spouse and family

Answer 33

(1) spouse gets 1/3 of SP if more than one child, at least one child and one issue of a deceased child, or more than one issue of a deceased child;

(2) spouse gets 1/2 of SP if only one child, only one issue of deceased child, or no children but one parent or issue of parent

Question 34

Modern Per Stirpes

Answer 34

Lineal descendants take per capita by right of representation (modern per stirpes).

Go to first living in next generation, and then split per those alive, or leavin gissue.

Question 35

Pretermitted Spouse

Answer 35

Spouse omitted from premarital will receives spouse’s intestate share of T’s estate unless
(1) omission intentional as shown in will (express language),
(2) spouse provided for in transfers outside will (e.g., prenuptial agreement), or
(3) spouse made valid agreement waiving spouse’s interest in decedent’s estate.

Question 36

Pretermitted Child

Answer 36

Child omitted from pre-birth will (child born after will) receives intestate share unless
(1) omission was intentional as shown in will,
(2) child provided for in transfers outside will, or
(3) T had other children and left their estate to parent of omitted child.

Question 37

Bars to Succession Checklist

Answer 37

(1) Slayer Rule
(2) Elder Abuse
(3) Unsuccessful Will Contest