Wills

Question 1

Essay Roadmap for Wills

Answer 1

• Step 1: Determine whether there is any non-probate property (e.g., will substitute) such as a deed, trust, joint tenancy property, or payable on death (POD) account or policy.
• Step 2: Determine whether there is a valid will to distribute the remaining (probate) property.
• Step 3: If there is no will, the will is invalid, or if the will does not dispose of all property, apply the rules of intestate succession.

Question 2

Formalities of a valid will

Answer 2

1. in writing
2. signed: must be signed by the testator, or acknowledgement of signature, signed by someone in the testator’s presence and at his direction.
3. two witnesses: the will requires the signature of two witnesses who: 1) know the document is a will; and 2) both are present at the same time to witness the testator’s signing. They do not necessarily need to sign at the same time with each other’s presence.

Question 3

What would happen if

a will is not properly witnessed

Answer 3

the will can still be treated as properly executed if one can establish by clear and convincing evidence that the testator intended the document to be his will.

Question 4

the witnesses are interested parties

Answer 4

an interested witness creates a rebuttable presumption that the witness procured the devise by duress, menace, fraud, or undue influence, unless there are two other uninterested witnesses.

Question 5

a valid holographic will requires

Answer 5

1. material provisions must be the handwriting of the testator and signed;
2. it must be clear the document was intended as testator’s will; words of intent need not be in T’s handwriting.
3. if undated, it will be presumed to have pre-dated any other will.

Question 6

to create a valid will,

the testator’s mental capacity and intent

Answer 6

1. an individual must be at least 18 years old and of sound mind to make a valid will.
2. the will must not be made under duress, menace, fraud, or undue influence.

Question 7

T is not mentally competent to make a will if:

Answer 7

at the time the will was made, he is unable to:

1. understand the nature of the testamentary act,
2. understand the nature and situation of his property; and
3. remember and understand his relations with family members that are affected by the will.

OR

he suffers from a mental disorder that results in hallucinations or delusions that cause him to devise property in a way that he would not have done but for the disorder.

Question 8

Define

fraud

Answer 8

• misrepresentation, deceit, or concealment of
• a material fact,
• known to be false by the wrongdoer,
• with the intent to deprive a person of rights,
• and does in fact deprive that person of rights.

Question 9

3 types of fraud in testamentary setting

Answer 9

1. fraud in the execution: T is unaware that he is signing a will, the entire will will be invalid.
2. fraud in the inducement: when the wrongdoer influences T through misrepresentations to include provisions in a will. Only those particular fraudulent terms will be invalid.
3. fraud preventing will execution or revocation

Question 10

Define

common law undue influence

Answer 10

1. T was susceptible to the influence;
2. the beneficiaries had opportunity to influence this disposition;
3. T left an unnatural disposition of his property; and
4. the beneficiaries were active in procuring this disposition.

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Question 11

Define

CA statutory undue influence

Answer 11

1. Excessive Persuasion
2. that causes another person to act or refrain from acting;
3. by overcoming that person’s free will, and
4. result in inequity.

Circumstantial evidence can be used to prove undue influence: factors including Vunerability of the victim, the Influencer’s Authority; Actions of Influencer.

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Question 12

The presumption of fraud and undue influence

Answer 12

the court presumes fraud or undue influence when the instrument makes a donative transfer to:

1. the person who drafted it;
2. a person in a fiduciary relationship with T who transcribed the instrument;
3. a care custodian of T;
4. a co-habitant or employee of any of the above people;
5. exceptions to the presumption: when the beneficiary is a blood relative or cohabitant, or when the value is less than $5,000, or when there is an independent attorney reviews.

The presumption can be rebutted by clear and convincing evidence.

Question 13

Components of a will

Answer 13

1. integration
2. incorporation by reference
3. acts of independent legal significance
4. codicil
5. pour-over will

Question 14

Integration

Answer 14

Papers are integrated into the will if they were present at the time of the exeuction and T intended them to be part of his will.

Extrinsic evidence can be used to prove presence and intent.

Question 15

incorporation by reference

Answer 15

a writing outside the will may be incorporated by reference into the will if the writing:

• existed at the time the will was executed; and
• the will manifests the intent to incorporate; and
• the will sufficiently described the writing

CA Special Rule for limited tangible personal property: a writing, even if it cannot IBR, may be admitted if:

• was referred to in the will
• dated and either is T’s handwriting or signed by T;
• describes the items and beneficiaries with reasonable certainty;
• each item <5k
• total value <25k

Question 16

Acts of independent legal significance

Answer 16

a will may dispose of property by reference to acts and events that have independent legal significance apart from their effect in the will.

Question 17

codicil

Answer 17

a codicil is an amendment to an existing will made by T to change, explain, or republish his will. Must meet the same formalities as a will or holographic will.

Question 18

pour-over will

Answer 18

a will that identifies a trust created by T into which he can “pour over” his probate assets. Valid if:

• the trust is identified in the will;
• the terms are set forth in an instrument other than the will, and
• the trust was executed concurrently or before the will execution.

Question 19

Types of revocations of a will

Answer 19

1. revocation by a physical act
2. revocation by subsequent will
3. revocation by operation of law (omitted spouse and children)
4. dependent relative revocation

Question 20

revocation by a physical act

Answer 20

• T commits a physical act (canceling, tearing, obliterating, destroying) with intent to revoke, or a third party acting on behalf of T does so at T’s direction and in T’s presence.
• Destruction of a copy—revocation of a duplicate original revokes all copies, but destruction of an unexecuted copy does not serve as a revocation of all copies
• Lost Wills—a will not found at T’s death will create a presumption it was revoked by physical act
• cross out one of the beneficiaries: the crossed-out person’s portion goes to the will residue.

Question 21

revocation by subsequent will

Answer 21

subsequent will can either expressly or impliedly revoke the previous will in part or in whole.

Question 22

revocation by operation of law

Answer 22

A devise is revoked by operation of law to accomodate an unintentionally omitted spouse or child or subsequent domestic partner, or to remove all devises to a previous spouse/domestic partner after dissolution

Question 23

omitted spouse

Answer 23

OS will receive an intestate share if they were married after the will was made, unless they were:

• intentionally omitted as indicated on the face of will, or
• otherwise provided for outside the will with an intent to do so in lieu of the will; or
• waived their right to their share in a valid agreement

Question 24

omitted children

Answer 24

OS will receive their intestate share if born or adopted after the will was made unless:

• intentionally omitted
• provided for outside the will
• the decedent had one or more children and devised substantially all of the estate to the other parent of the OC.

Question 25

Dependent Relative Revocation (DRR)

Answer 25

DRR applies where T revokes his first will on the mistaken belief that a substantially similar second will or codicil would be effective, but it was not effective at death, and but for the mistake the testator would not have revoked his first will.

The court allows the first will to take effect.

1. if the second will is invalid due to fraud, duress, undue influence, etc., then the revocation of the first will was never valid.
2. DRR only revives the most recently revoked will.

Question 26

Revival of a will

Answer 26

When a will is revoked by a physical act or a subsequent will, and then the subsequent will is revoked as well, the first will is revived if the testator intends for it to be revived. Extrinsic evidence is permitted when revocation is performed by a physical act.

Question 27

Classification of testamentary gifts

Answer 27

• specific gift: a gift os specific, identifiable property. Stock split and dividends generally both result in the additional shares being distributed to the beneficiary. Courts look at T’s intent.
• general gift: a gift from the general assets of the estate and does not include specific property.
• demonstrative gift: a demonstrative gift is a general gift that specifies the property or a particular fund from which the gift should be made.
• residuary gift: what remains of the estate after all other gifts have been satisfied and debts and taxes are paid.

Exam tips: argue for both specific and general gift and always discuss the testator’s intent.

Question 28

Ademption

Answer 28

applies when a specific gift changed form from that identified in the will.

Question 29

adeem by extinction

Answer 29

if the specific gift identified in the will is not part of the estate at the time of T’s death– in other words, the specific gift is void and that purported devisee takes nothing.

• Courts will look at testator’s intent
• Specific gifts that involves securities that changed form: the beneficiary is entitled to a general pecuniary gift of equal value.

Question 30

adeem by satisfaction

Answer 30

if T’s will provides for deduction of the lifetime gift, T or B declare in writing that the gift is satisfied, or the same property is given to B during his lifetime.

Question 31

abatement

Answer 31

when gifts are reduced to pay debts. The order of gift abatement will be:

1. property not disposed of by the will
2. residuary gift
3. general gifts to nonrelatives
4. general gifts to relatives
5. specific gifts to nonrelatives
6. specific gift to relatives

specific gift= a gift of specific, identifiable property
general gift = general assets of the estate
demonstrative gift = a general gift that specifies the property or a particular fund from which the gift should be made
residuary gift = what remains of the estate

Question 32

Exoneration

Answer 32

when a gift of property is made that is subject to an encumbrance, such as a loan, and the will requires the encumbrance to be paid off so that the devisee takes the property free and clear of the mortgage.

Question 33

lapse and anti-lapse rules

Answer 33

apply when the persons taking under a will are no longer alive at the time of T’s death. (B predeceased T)

• lapse: traditional rule- the gift lapsed and became residue and would be distributed intestate.
• anti-lapse: operates to save the gift if the predeceasing beneficiary is a relative of T or T’s spouse AND
• B leaves issue; the issue will take the predeceased beneficiary’s share.

Question 34

Widow’s election

Answer 34

A widow’s election allows a widow, widower, or a surviving domestic partner to elect to keep his share devised under the decedent spouse’s will or to take his statutory share, which is his half of CP and QCP, if the deceased spouse attempted to dispose of more than half of the CP or QCP and there are no children. (1/3 if there are children)

Question 35

Bars to succession

Answer 35

• no contest clause: a no contest clause in a will penalizes a beneficiary if he contests the instrument.
• killers: intentional and felonious killers do not take under the will or by intestacy, and are treated as having predeceased the testator and anti-lapse rule does not apply.

Question 36

Intestate distribution of community property

Answer 36

For all CP and QCP, the surviving spouse or domestic partner takes all of the CP and QCP.

For the decedent’s SP:

• if the decedent did not leave any surviving issue, parent, siblings, or issue of siblings: the surviving spouse takes all of the SP
• If the decedent has one child, parent, or their issue: the surviving spouse takes 1/2 of SP.
• If the decedent has more than one child, parent, or their issue: the surviving spouse takes 1/3 of SP.

Question 37

Intestate succession order

Answer 37

applies when decedent dies without leaving a surviving spouse, or for the portion of the estate remaining after the surviving spouse took her share.

1. to issue
2. to parents, if no issue
3. issue of parents, if none of the above
4. grandparents, if none of the above
5. issue of grandparents
6. issue of predeceased spouse/partner
7. next of kin
8. parents of predeceased spouse
9. issue of parents of predeceased spouse
10. escheat to state

Question 38

120-hour rule

Answer 38

For intestate succession to apply, the heir must survive the decedent by 120 hours or he will be deemed to predecease the decedent.

Question 39

Advancement

Answer 39

If a person dies intestate, property the decedent gave to an heir during lifetime is treated as an advancement against that heir’s share of the intestate estate only if the decedent declared and the heir acknowledged such in writing.

Question 40

per capita

Answer 40

the first generation with living takers is allocated a share in which all living persons at that generation take an equal share,

next, the shares of all deceased persons at that generational level are combined and then divided equally among the takers at the next generational level in the same way.

So persons of the same degree of kinship to the decedent always takes equal shares

Question 41

per capita with representation

Answer 41

divide the property equally at the first generation with a living member who survived D; for those at that level who did not survive D, their share goes to their issue who survived D.

Question 42

strict per stirpes

Answer 42

equal distribution at the first level in which there are surviving heirs or deceased heirs who left issue;
then the issue of the decease heirs share their parents’ share equally.