Wills

Question 1

Intestacy BAR TIP

Answer 1

When dead without a will

NOTE if will is disputed on validity, do both if it’s valid, and assuming it’s not valid intestate in the event that it’s not valid

Question 2

Surviving spouse

Answer 2

Must be legally married to decedent at time of death and must survive decedent by 120 hours

Question 3

Community property share

Answer 3

At death, surviving spouse takes 1/2 of CP, the surviving spouse of intestate decedent is also entitled to decedent’s 1/2 CP and quasi-CP, therefore spouse will take 100% of CP

Question 4

Issue of decedents (children, grandchildren, etc)

Answer 4

Per capita and per capita with representation are the primary methods in CA.
Per capita: when all surviving issues are same level of relationship to D, property passes equally
Per cap w rep: when not same level, prop goes to first generation and then go to predeceased’s issues

Question 5

Capacity

Answer 5

Testator must be at least 18, understand action being taken, understand the extent of his property, understand who is receiving

Question 6

Testamentary intent

Answer 6

T must understand he is executing a will and intends for it to have testamentary effect

Question 7

Attested Wills

Answer 7

Must be in writing and signed by T

Witnesses: must be signed in joint presence of and attested by two witnesses. Each witness needs capacity

Question 8

Interested witnesses

Answer 8

Witness w financial interest in will. CA can be valid despite their presence.

Rebuttable presumption: created for interested witness/devisee exerted undue influence. If not rebutted then only gets intestate share of will

Question 9

Republication by codicil

Answer 9

Validly executed codicil cures the interested witness problem

Question 10

Substantial Compliance

Answer 10

If will is not executed in compliance with law, will is treated as it had been executed in compliance if proponent shows clear and convincing evidence that at time of T signing, T intended it to constitute testators will

Question 11

Holographic wills

Answer 11

T must handwrite the material provisions of a holographic will. Material provisions include the beneficiaries and the items they receive, can be preprinted but the material provisions need to be handwritten!
T must sign
No witness requirement but intent must be clear

Question 12

Codicil

Answer 12

Supplement to will that alters, amends, or modified the will. Republication date is considered the date of will being published

Question 13

Will substitute - deed

Answer 13

A deed of propert can serve as will substitute. If grantor delivers deed to third party (agent) with instructions to deliver deed to grantee upon grantors death

Question 14

Choice of law

Answer 14

If will is validly executed in another state, the will is treated as valid in CA,

if not validly executed in another state, but D is domiciled in CA and dies in CA, then will is treated as valid if meets CA requirements

Question 15

Subsequent revocation

Answer 15

Testator can revoke by another will or codicils that revokes the prior one. Can be expressly or impliedly (or inconsistencies). Same with physical revocation

Question 16

Revocation by operation of law

Answer 16

Divorce (terms benefitting spouse will be struck)

Question 17

Revocation of codicil

Answer 17

Original will then becomes alive again

Question 18

Republication

Answer 18

Revocation if a later will or codicil that revokes original will revives the original will if there is proof T intended to revive it. If later will or codicil is revoked by physical act, extrinsic evidence of T intent to revive original will is admissible

Question 19

Dependent relative revocation DRR

Answer 19

Allows court to revive revoked will when shown that T would not have revoked original will but for mistaken belief

Question 20

Doctrine of integration

Answer 20

The Will consists of all pages present at time of execution. And are intended to be a part of the Will

Question 21

Incorporation by reference

Answer 21

Referencing another document
- must have existed at time of execution
- intent for it to be a part of the will
- described by the Will or codicil with sufficient certainty

(If it’s for personal property being disposed, the reference paper can be written later)

Question 22

Acts of independent significance

Answer 22

Will can reference outside events or acts that help determine where to distribute the estate (like getting married)

Question 23

Classification (special gift)

Answer 23

An item that can be distinguished with reasonable accuracy from other property of T’s estate (car or specific furniture)

Question 24

Classification (general gifts)

Answer 24

Meant to be satisfied from the general assets of estate (money)

Question 25

Classification (Demonstrative gift)

Answer 25

“If funds aren’t sufficient for amount, then payment from general funds”

Question 26

Classification (residuary gift)

Answer 26

Gift of the estate remaining when all claims against the estate and all other classifications of gifts have been satisfied

Question 27

Abatement (order of priority)

Answer 27

Abate gifts pro rata in this order
1) intestate property (property not assigned in will)
2) residuary bequests
3) general bequests
4) specific bequests

Question 28

Ademption by extinction

Answer 28

If specific gift is missing, destroyed, or sold, the beneficiary takes nothing (doesn’t apply to general or demonstrative gifts)

CA courts will look at T’s intent when selling the gift, if there is evidence that T intended for B to receive the gift then court may treat it as a general or demonstrative gift or trace it to its new form

Question 29

Lapse and anti-lapse

Answer 29

Common law: B dying before T, B’s kids get nothing
Modern and CA: if B is sufficiently (blood) related to T, then B’s kids step up and take their place and inherit what B would inherit

Limitation: class gift, if the will beneficiaries are a class only the members of the class who are alive at the time of the execution will receive the benefit

Question 30

Ambiguities in the will

Answer 30

Extrinsic evidence is admissible if a parent or latent ambiguity is shown (not to determine terms of Will). But stuff like “who is the stepson”