Wills Flashcards
Will Formation (Capacity + Intent)
- 18 years of age or older; understands the proeprty you are giving away; understands the beneficiaries; understands you are making a testamentary instrument
Insane Delusion: (1) false thought; (2) result of sick mind; (3) not a scintilla of evidence to support it (CA), no reasonable person would believe (other j(x); and (4) affected the will
Fraud: (1) false statement; (2) scienter; (3) induce reliance; (4) caused reliance; and (5) justifiable reliance
* Fraud in Execution: Fraud to execute agreement -> agreement void
* Fraud in Inducement: Inducement of certain terms -> terms struck
* Fraud in Revocation: Constructive Trust -> goes to beneficiaries
Undue Influence:
* Prima Facie case: (1) susceptibility; (2) opportunity; (3) active particpation; and (4) unnatural result
* Presumption: (1) Confidential Relationship; (2) active participation; and (3) unnatural result
* Statutory: (1) Drafter or their family takes under the will; (2) transcriber with fiduciary duty takes under the will; or (3) care taker takes under the will during or w/in 90 days of care
Mistake
Will Formation (Formalities)
Attested Will: (1) In writing; (2) signed by testator; (3) witnessed and signed by two disinterested parties; and (4) witnesses understood they were watching the execution of a testamentary intstrument
Substantial Compliance: For wills that do not meet proper formalities, so long as there is evidence that the T’s intent was for this document ot be their will and they substantially complied with the formalities, it will be deemd valid.
Holographic Will: (1) handwritten by testator; and (2) signed by testator. No need for date but does protect from invalidity if unclear which will is newer
CA recognizes wills that are (1) validly formed in another state; (2) would have been validly formed where T was domiciled; and (3) would have been validly formed under CA law.
Will Formation (Components)
Integration: Think anything stapled to the paper. Must be: (1) present at time of will; (2) T’s intent; and (3) can be shown with extrinsic evidence.
Incorporation by Reference: Think other documents or if subsequent instrument references previous. Must be: (1) in existence at time of will; will shows T’s intent; and (3) sufficiently described
Acts of Independent Legal Signifigance: Think grants to employees working at company at time of testator’s death. Seperate from effect in will
Codicil: amendment to existing will made to change, explain, or republish will. Must meet regular will formalities
* Revocation of codicil leaves underlying will intact, revocation of will terminates codicils
* Valid codicil acts are republication of will, think for omitted spouse/child issues
Pour-Over Will: Will that identifies a trust created by T that can “pour over” probate assets and avoid probate. Needs to be: (1) identified in will; (2) terms set forth in instrument other than the will; and (3) trust was executed concurrently or before the will.
Will Revocation
Operation of Law:
* Ex-Spouse devises are removed and go to residue
* Omitted Spouse/Child get intestate share if the relationship occured after the execution of the will unless: (1) they were intentionally omitted; (2) they were provided for through another means outside the will; or (3)(a) (for spouse) if they waived the right; OR (3)(b) (for child) if the parents had other kids at the time of execution AND the surviving spouse was left the bulk of the estate
Destruction
* A will can be revoked by physical act of T or T’s agent if T is there and directs agent. Can be accomplished by burning, tearing, cross-out, destruction, additional language AND intent to revoke.
* Duplicate’s that were executed are also presumed revoked if one of the duplicates is destroyed.
* Cancellation: Crossing out a gift revokes it, goes to residuary
* Interlineations: Must satisfy will formalities. Cannot raise amount of gift but can lower. If raised, which is invalid, can use DDR
Subsequent Instrument: Can revoke a will through express or implied language.
Dependent Relative Revocation: If mistake, revocation is disregarded and original meaning is revived. Requires that: (1) T revokes will in mistaken belief that what they are doing is valid or that substantially identical will or codicil effectuatues T’s intent.
* If second will invalid because of fraud or execution, then revocation of first is invalid and will #1 was never revoked.
Will Revival
If will is revoked by physical act or subsequent will, and then the subsequent will is revoked, the first will is only revived IF the testator intends for it to be revived.
Distrbution (Ademption, Abatement, Exoneration)
Classification: From first to be abated to last, you go:
* Residuary Gifts
* General Gifts (Non-relative -> Relative)
* Demonstrative Gift (Non-relative -> Relative): General gift from particular property or fund from which gift is made
* Specific Gifts
Argue both ways if unclear if gift is specific or general! (Say house with no address).
Ademption: Specific Gift has changed form
* Extinction: specific gift is not part of estate at T’s death, look at T’s intent to determine whether gift adeems
* Can receive the changed form if gift of: securities; conservator sold property; or eminent domain.
- Satisfaction: testator’s will provides for deduction of the lifetime gift
Abatement: Gifts are reduced to enable the estate to pay all debts and legacies, goes in above order.
* If for intestate share, the math essentially looks what people would have gotten prior to the share. You then take that percentage, multiply it what the intestate share is, and then subtract that amount from what they were previously getting.
Exoneration: Applies to gifts that have encumbrances, estate will pay off with other assets so devisee can take free and clear. NOT AUTOMATIC IN CA, need to specify
Anti/Lapse
Lapse: If beneficiary pre-deceases testator, general rule was that beneficiary issues are simply out of luck
Anti-Lapse: Modern rules (CA), if beneficiary is blood related or is blood related to spouse (but not spouse themself), the issue of the beneficiary can stand in pre-deceased shoes.
Bars to Distribution (Predeceased)
Simultaneous Death: Person needs to die with clear and convincing evidence 120 hrs after testator to not be considered predeceased.
No Contest Clause: Those who contest the will, without probable cause there was capacity issues, are treated as predeceased
Elder Abuse: Self Explanatory
Slayer Statute: Self Explanatory
Intestate Succession
CP: Surviving Spouse takes all CP and QCP
SP
* If spouse survives and no one else: Spouse gets all SP
* If spouse survives and 1 child or parents: Spouse gets 1/2 SP
* If spouse survives and 2+ children: Spouse gets 1/3 SP
Advancements: If person dies intestate, property that the decedent gave an heir during lifetime is treated as advancement against heir’s share of intestate succession ONLY IF T declared and heir acknowledged. Use Hotchpot analysis.
* Basically add advancements to intestate estate; then divide by children taking; and deduct what they got earlier from that number. n
