Wills Flashcards
What is Intestacy?
● The default rules for who gets a person’s property after they die are called the rules of “intestacy” or “intestate succession.”
● If a person dies without an estate plan in place (e.g., no will or trust, etc.), their property – including determining how much each person receives – will go to the people designated in the Probate Code (and in some cases, the state).
Probate
● “Probate” refers to the court-supervised process that determines how a person’s property will be distributed after they die.
● If no will, the court supervises the distribution of assets according to the laws of intestacy.
● If will, the court supervises the distribution of assets according to the instructions in the will, and possibly, the laws of the intestacy for property not covered by the will.
Probate v. Non-probate Property
Probate Property
- No will (person dies “intestate”): by laws of intestacy
- Will (person dies “testate”): to named beneficiaries and/or under laws of intestacy
“Non-probate Property”
- Joint-tenancy (by operation of law): to cotenant(s)
- Life insurance policy (by contract): to named beneficiaries
- Pay-on-death (POD) and transfer-on-death (TOD) accounts (by contract): to named beneficiaries
- Inter vivos trusts (a.k.a., “revocable living trusts”) (under trust law): to named beneficiaries
Marriage: Characterization of Property
Separate Property: Property owned before marriage, acquired during marriage by gift, devise, or inheritance. Must be kept separate from Community Property to remain Separate Property.
Community Property: Any property acquired by either spouse as a result of their labor during marriage during the marriage. CP is held 50/50 by the spouses while both are alive.
California Survivorship Rules
Intestate Takers: California requires an intestate taker to survive the decedent by 120 hours (5 days). See CPC § 6403.
Written Instruments: But if the decedent dies with a written instrument (e.g., will or nonprobate instrument) only clear and convincing evidence is required that the decedent survived by a millisecond or as provided in the instrument, in which case the instrument governs. See CPC § 21109.
Joint-tenancy: If decedents held property as joint-tenants and they both simultaneously die with neither able to meet the “clear and convincing evidence” survival requirement (e.g., catastrophic plane crash), then by operation of law the property is severed and converted into tenancy-in-common, with proportional shares (e.g., if two joint tenants, then 50-50 split). See CPC § 223.
Calculating Share to Issue
Issue: means all of a person’s lineal descendants
There are three different approaches (Per stirpes, Per Capita with Representation, and Per Capita each Generation):
Pooling: Pooling refers to how the math of adding up remaining shares is performed after each successive drop in generation. In most cases, per stirpes and PCR, pooling is done by bloodline meaning once a share has been distributed to a line in the family tree it stays there. In Per Capita each generation however, after each generation of shares is distributed the remaining untaken shares are pooled and divided equally for the next generation.
Per Stirpes
1st Division: Occurs at the first tier always.
Distribution of Shares: 1 share for each living party and 1 share for each deceased party survived by issue.
Dropping of Shares: by Bloodline.
Notes: Main difference here is first division at the first tier rather than first live taker.
Per Capita with Representation
1st Division: Occurs at tier with first live taker.
Distribution of Shares: 1 share for each living party and each dead party survived by issue.
Dropping of Shares: by Bloodline
Notes: Vanilla method, 1st live taker, and no pooling.
Per Capita each Generation
1st Division: Occurs at tier with first live taker.
Distribution of Shares: 1 share for each living party and 1 share for each dead party survived by issue.
Dropping of shares: By Pooling, remaining untaken shares are pooled prior to dropping to the next tier down where they are equally distributed.
Notes: Main distinction here is the pooling.
Who Qualifies as a Spouse?
Qualifies as a Spouse
- Traditional heterosexual married couples
- Same sex married couples
- Putative spouse - good faith belief that married (sometimes qualify)
Does not Qualify as a Spouse
- Cohabitants
- No Common Law Marriage in California
Who Qualifies as a “Child” or “Parent” for Inheritance?
Inheritance rights depend on the legally recognized “parent-child relationship”
Children Born Out of Wedlock
● For children born out of wedlock, a legally recognized parent-child relationship must be proven before inheritances rights attach between the parties.
● In California, a natural parent-child relationship may be established for inheritance purposes:
○ Where the relationship is presumed, and not rebutted, under the Uniform Parentage Act [beyond the scope of our course];
○ If a court order declaring paternity was entered during the father’s lifetime; or
○ If paternity is established by clear and convincing evidence after a natural father’s death
Adopted Children
(a) An adoption severs the relationship of parent and child between an adopted person and a natural parent of the adopted person unless both of the following requirements are satisfied:
(1) The natural parent and the adopted person lived together at any time as parent and child, . . . [and]
(2) The adoption was by the spouse of either of the natural parents or after the death of either of the natural parents. […]
Requirements for Testamentary Capacity
Testamentary Capacity is concerned with the testator’s mental capacity at the time they executed their will.
CPC § 6100 (Excerpt)
(a) An individual 18 or more years of age who is of sound mind may make a will. […]
Summary of CPC § 6100.5
An individual is not mentally competent to make a will if, at the time of making the will, he or she is unable to:
1. Understand the nature of the testamentary act; or
2. Understand the nature and situation of her property; or
3. Remember and understand her relations with family members that are affected by her will.
Estate of Mann (Mill Valley Dementia)
Background: Mill Valley woman, Hazel Mann, has a close relationship with both of her nephews (closer with Smith than Van Gorp). Hazel eventually develops senile dementia. Hazel dies and leaves the bulk of her assets to Smith. Will was executed during the time when Hazel was suffering from dementia but she had lucid periods. The question is whether she had required testamentary capacity in making the will.
Analysis: Court finds that testamentary capacity must be determined at time of execution. Burden is a contestant to overcome presumption of competence and presumption of execution during lucid period. Court finds that barring contradictory evidence Hazel was lucid at the time of executing the will.
Undue Influence
Undue influence is when a party unduly influences the testator to substitute the undue influencer’s intent for the testator’s intent.
Types of Undue Influence:
- Presumption of Undue Influence
- CA indicia of Undue influence
- General indicia of Undue Influence
California Requirements: Undue Influence
CA Judicial Presumption of Undue Influence
California judicial presumption of undue influence requires the contestant to show:
1. a confidential relationship between the decedent and the alleged undue influencer;
2. that the alleged undue influencer was active in the procurement or execution of the will; and
3. that the alleged undue influencer “unduly benefits” from the will.
Types of Fraud in Will
Fraud in the inducement is when the will says what the testator wants it to say, but that intent was induced by fraudulent misrepresentations – deception - made by a beneficiary under the will to induce the testator to include the beneficiary or exclude a gift, or with respect to the size of the gift in the will.
Fraud in the execution occurs when a testator is unaware she is signing a will or the will is forged by another resulting in the entire will being invalid.
Bottgers Estate (Farmer Undue Influence)
Background:
● Ida Bottger and John Botter married; 9 children
● John died and “favorite” son Jesse took on helping mother (Jesse had nearby farm)
● 1922: Charlotte worked for Jesse, and occasionally, Ida
● 1938: Charlotte married Harry (one of Ida’s 9 children)
● 1939:
○ Jess died; Ida is Jesse’s sole heir
○ Charlotte moved-in to live with and care of Ida. No payment, but land transferred to Harry (Charlotte’s husband).
● February 5, 1940: Ida executed will. $10 to kids except Harry; rest to Harry.
● February 17, 1940: Ida served with notice of Petition for Guardian of her Property (by children other than Harry). Settlement + guardian appointed with two attorneys serving as co-guardians.
● January 1, 1941: Ida died.
Analysis: No false representations that changed Ida’s intent in making the will. She had a reasonable motive for changing the will, Harry and Charlotte taking care of her while the other kids didn’t.
Formal Requirements for a will?
A Formal Will (Attested Will) must meet the following requirements:
● (1) a writing
● (2) a signature by the testator or in the testator’s name by a person in the presence and at the direction of the testator
● (3) have at least two witnesses present at the same time that witness the testator sign the instrument while also being aware the instrument is a will. Witnesses must sign but may do so anytime during the testator’s lifetime.
Attested Will Writing Requirement
A writing can be anything tangible, though traditionally paper
Tape recorded or videotaped wills are not allowed in California
Attested Will Signature Requirement
The signature must be in the testators name and by the testator or at their direction by another person in their presence if they cannot physically sign.
A signature is whatever the testator intends their signature to be. The signature must be complete, they cannot have been interrupted during the process. An “x” is sufficient but only if you can demonstrate that the testator was unable to write out their name. Artist names are fine.
If the signature in in T’s name but by another person they must have been there in person and affirmatively requested the person to sign for them.
Rubber stamps and electronic signatures are not sufficient in California
Attested Will Witness Requirements
There must be at least two witnesses present for the signing of the will and they must be aware that they are witnessing a will being signed.
There are three important issues to analyze when looking at the attested will witness requirement: Presence requirements, Limited harmless error doctrine, and Interested Witnesses.
Attested Will Witness Requirements: Presence
Presence: CA follows the conscious presence approach (court will view from the totality of the circumstances–sight, hearing, general awareness–to determine whether witnesses could tell that T is signing a will)
Old Rule: line of sight test where witnesses do not actually have to see the T sign, but must be able to be seen if they were to look
Attested Will Witness Requirements: Limited Harmless Error Doctrine
Limited Harmless Error Doctrine: If a will was not executed in compliance with witness requirements as stated above, the will shall be treated as if it was executed in compliance if the proponent (i.e., the party who wants the will to be valid) can establish by clear and convincing evidence that, at the time the T signed the will, the T intended the will to constitute the T’s will.
Interested Witnesses
Interested Witnesses: witnesses must be disinterested witnesses (i.e., cannot be persons who benefit from the will as an interested witness creates a rebuttable presumption that the witness procured the device by duress, menace, fraud, or undue influence.)
If witnesses can rebut the presumption, the witness takes the whole gift
If witnesses cannot rebut presumption, will is NOT invalidated but the gift to the witness will be purged (i.e., interest witness’ gift will be limited to whatever they would have taken under the laws of intestacy and any excess gift beyond the witness’ intestate share fails)
- If a Witness is set to inherit less than their intestate share no change occurs.
Holographic Will Requirements
Holographic wills are handwritten and without will formalities
A will that does not comply w/ formal attested will requirements is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the T.
If it is established that the T lacked testamentary capacity @ any time during which the will might have been executed, the will is presumptively invalid UNLESS it is established that it was executed at a time when the T had testamentary capacity.
when we are dealing with a HOLOGRAPHIC WILL and the T might have lacked testamentary capacity and there is no date, there is a presumption that the will is invalid
Any statement of testamentary intent contained in a holographic will may be set forth either in the testator’s own handwriting or as part of a commercially printed form will.
Note: i.e., if there are 2 wills, and 1 has date and 1 without date and both are holographic wills, then 1 w/ date is going to be controlling UNLESS evidence establishes that the other will was before the 1 w/ date
In Re Estate of Williams
● Rule: A Holographic Will is a handwritten Will
○ Material provisions must be in testator’s handwriting
● Rule: A Holographic Will must be signed
○ The signature does not need to be at the end of the will. However, must appear to be intended to authenticate the contents of the will
○ Must have “indicia of completeness,” show that testator “had done everything he intended to do” (as opposed to the will looking unfinished)
○ Testator does not need to sign in the same way as they sign other documents
● Rule: Testamentary Intent is Required
○ No particular words are necessary to establish testamentary intent; only that T intended to dispose of property after death
○ Intent is based on intent to distribute property at death, not realizing that it’s a “will”
○ The will does not need to dispose of all of testator’s property
Types of Will Revocation
● Express revocation by writing
● Express revocation by act
● Implied revocation by writing
● Implied revocation by act
● Implied revocation by operation of law
Express Revocation by Writing
T writes a new will that expressly revokes the prior will, which can be in part or in whole
The new writing revoking the will must comply with all writing requirements (signature, witnesses)
Codicil: When the writing only partially revokes a previous will, it’s considered a codicil to the prior will. Revoking a will revokes all codicils contained therein, revoking a codicil only revokes that codicil not the underlying will.
Implied Revocation by Writing
Also known as revocation by inconsistency. Occurs where T writes a new will which revokes the prior will by inconsistency.
If both wills can operate (i.e. they are consistent) then no revocation occurs
Writing must function as a writing (requires signature, witnesses)
Revocation of Will v. Codicil
Revocation of a will revokes all codicils thereto, but revocation of a codicil only affects the codicil—it does not revoke the underlying will. (p. 220)
Express Revocation by Act
Occurs where T destroys the old will by some destructive act (burned, torn, canceled, obliterated, or destroyed) and T has intent to revoke.
Can direct another person to destroy the will
Don’t have to destroy all photocopies – just have to destroy original/duplicate original for revocation by act to be valid, BUT best practice would be to destroy all photocopies as well
Duplicate Original Wills
Occurs when there are 2 original copies of the same will, NOT a photo copy
If T destroys a duplicate with intent to revoke it, the other duplicate is also revoked.
If one duplicate is lost but not the other–doesn’t raise implied revocation by act or presumption b/c at least one is not lost
Implied Revocation by Act
There is a rebuttable presumption that T destroyed w/ intent to revoke if T’s will was:
1. Last in T’s possession
2. T was competent until death: and
3. Neither the will nor a duplicate of the will can be found after T’s death
Implied Revocation by Operation of Law
A will (or part of a will) is revoked by operation of law to remove all devises to an ex-spouse after divorce or annulment, and to prevent the spouse from serving as the executor of the will.
● This occurs automatically
Revival of Revoked Wills
Revival is about the intent of T to revive a validly revoked will
RULE: when a second will (that revoked the first will) is revoked by a physical act or third will, the first will is revived if T intends for it to be revived.
● Evidence Standard: the evidence that a court will accept depends on how the second will was revoked
○ Where the second will is revoked by act – the CA courts will accept virtually any evidence of the intent to revive.
○ Where the second will is revoked by writing (i.e., by third will) the intent to revive must be explicitly expressed in the third will.
