Wills Flashcards
Intestacy BAR TIP
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
Surviving spouse
Must be legally married to decedent at time of death and must survive decedent by 120 hours
Community property share
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
Issue of decedents (children, grandchildren, etc)
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
Capacity
Testator must be at least 18, understand action being taken, understand the extent of his property, understand who is receiving
Testamentary intent
T must understand he is executing a will and intends for it to have testamentary effect
Attested Wills
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
Interested witnesses
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
Republication by codicil
Validly executed codicil cures the interested witness problem
Substantial Compliance
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
Holographic wills
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
Codicil
Supplement to will that alters, amends, or modified the will. Republication date is considered the date of will being published
Will substitute - deed
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
Choice of law
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
Subsequent revocation
Testator can revoke by another will or codicils that revokes the prior one. Can be expressly or impliedly (or inconsistencies). Same with physical revocation
Revocation by operation of law
Divorce (terms benefitting spouse will be struck)
Revocation of codicil
Original will then becomes alive again
Republication
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
Dependent relative revocation DRR
Allows court to revive revoked will when shown that T would not have revoked original will but for mistaken belief
Doctrine of integration
The Will consists of all pages present at time of execution. And are intended to be a part of the Will
Incorporation by reference
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)
Acts of independent significance
Will can reference outside events or acts that help determine where to distribute the estate (like getting married)
Classification (special gift)
An item that can be distinguished with reasonable accuracy from other property of T’s estate (car or specific furniture)
Classification (general gifts)
Meant to be satisfied from the general assets of estate (money)
Classification (Demonstrative gift)
“If funds aren’t sufficient for amount, then payment from general funds”
Classification (residuary gift)
Gift of the estate remaining when all claims against the estate and all other classifications of gifts have been satisfied
Abatement (order of priority)
Abate gifts pro rata in this order
1) intestate property (property not assigned in will)
2) residuary bequests
3) general bequests
4) specific bequests
Ademption by extinction
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
Lapse and anti-lapse
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
Ambiguities in the will
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”
