Wills

Question 1

Intestate succession

Answer 1

When a decedent dies without a will, the decedent’s property is distributed through a default plan known as intestate succession

In California, if surviving issue are all of equal degree of kinship, then the property passes per capita. If they are of unequal degree of kinship, and the decedent dies intestate or does not specify the method of calculating shares, then the per capita with representation method is used.

Question 2

Escheats

Answer 2

When a decedent dies intestate with no heirs, the decedent’s property escheats to the state

Question 3

Execution of Wills (Attested Wills)

Answer 3

For a valid attested will, the following will formalities must exist: (1) a writing signed by the testator (in CA, signature can be anywhere), (2) in the presence of at least two witnesses, where both witnesses understand the significance of the testator’s act, where (3) the testator possesses testamentary intent or the PRESENT intent to devise his or her property by will, and (4) where the testator has capacity (18 years or older, and of sound mind; see other card for capacity test)

The testator must sign the will in the joint presence of two witnesses (CA uses a conscious presence rather than a line-of-sight test), and both witnesses must have understood the significance of the act.

Question 4

Testamentary capacity

Answer 4

To have capacity, the decedent must be at least 18 years of age. Additionally, he or she lacks the requisite capacity if at the time of execution

(1) He or she did not have sufficient mental capacity to
(a) Understand the nature of the act
(b) Understand and recollect the nature and character of his property, or
(c) Remember and understand his relationship to living descendants, spouse, parents, and those affected by his will

(2) he or she suffered from a mental disorder involving delusions and hallucinations which resulted in his or her devising property in a way that he or she would not have done but for the delusions and hallucinations

Question 5

Witnesses (Attested Wills)

Answer 5

To be valid, the decedent’s execution of an attested will must be witnessed by at least 2 witnesses.

Each witness must understand that they are signing a testamentary instrument as opposed to a non-testamentary instrument (but do not need to know specific bequests)

In CA, the witness must sign within the lifetime of the testator.

Conscious Presence vs Line of Sight tests - Under the traditional Line of Sight test, the testator must be in the witness’ line of sight when signing the will. Under the Conscious Presence test, the witnesses and testator only need to be aware of each other’s presence and of the act being performed, but physical observation of the act of signing is not required.

Question 6

Interested witness

Answer 6

An interested witness is a witness who has a direct financial interest in the will.

At common law, interested parties could not serve as a witness.

Under the modern approach, an there is a rebuttable presumption that the interested witness exerted undue influence unless there were two other disinterested witnesses present. if interested witness cannot overcome that presumption, they are only eligible to receive their intestate share.

Question 7

Compliance (Substantial Compliance)

Answer 7

In CA, if a will is not executed with all required formalities, the will is treated as though it had been executed in compliance if the proponent establishes by CLEAR AND CONVINCING EVIDENCE that the testator, at the time of execution, intended the document to serve as his or her will

Substantial compliance does not apply where a testator did not sign

Question 8

Holographic Will

Answer 8

Informal will - (1) material provisions must be handwritten by the testator, (2) the will must be signed by the testator, and (3) the testator must have intended the document to serve as a will (testamentary intent). A pre-printed form can be used so long as the material provisions of handwritten. The document need not be date or witnessed.

Question 9

Codicil

Answer 9

A writing that alters, amends, or modifies the will but does not replace it. Must be executed with same formalities as will (either attested or holographic)

Question 10

Choice of Law

Answer 10

If a will is validly executed in another state, CA will recognize the will as valid. If a will is not validly executed in another state, CA will still recognize the will as valid if it meets the CA requirements

Question 11

Revocation

Answer 11

A will or codicil may be completely or partially revoked at any time prior to the death of the testator, either by (1) a subsequent instrument, (2) a physical act of destruction, or (3) an operation of law

Question 12

Revocation - Subsequent Instrument

Answer 12

A testator can revoke a will or codicil by a later writing or subsequent instrument that either expressly revokes or impliedly revokes (if irreconcilable conflict or inconsistency exists) a previous will or codicil

Question 13

Per capita

Answer 13

Applies when all surviving issue are of equal degree of kinship (same generation). Each surviving issue takes equal share.

Question 14

Per capita with representation

Answer 14

Applies when all surviving issue are not of equal degree of kinship. Divide the share by the number of issue in the earliest generation of survivors (do not count issues who are deceased with no kids). For individuals who are deceased with surviving issue, shares get divided equally amongst those issue.

Question 15

Oral wills?

Answer 15

Not allowed in CA!!!

Question 16

Revocation - Physical Act

Answer 16

A testator may revoke all or part of a will by physical act, including tearing the will, burning the will, or striking out a portion. The testator must INTEND for the physical act to revoke the will or any material portion.

Question 17

Lost wills

Answer 17

There is a rebuttable presumption that a lost will was revoked by the testator. Can only be overcome by clear and convincing evidence.

Question 18

Duplicates and copies

Answer 18

Duplicate wills can be admitted to probate, but copies of wills cannot.

Question 19

Revocation by operation of law

Answer 19

Divorce or dissolution of a registered domestic partnership will revoke all will provisions in favor of the former spouse or partner unless the testator intended for those provisions to remain.

Question 20

Revocation of Codicil

Answer 20

By revoking a will, the testator also revokes a codicil attached to the will. But by revoking a codicil, the original will still remains

Question 21

Automatic Revival & Dependent Relative Revocation (DRR)

Answer 21

Revocation of a second will does not automatically revive a first will. In CA, need proof to show testator’s intent to revive revoked will.

But if a revocation was due to a mistake of law or fact, the court will invalidate the revocation allowing for revival of the mistakenly revoked will or codicil.

Question 22

Incorporation by Reference

Answer 22

Extrinsic documents may be incorporated into a will by reference. To incorporate a document by reference, (1) the document must be in existence at the time of execution of the will, (2) the testator must intend for the document to be incorporated in the will, and (3) the document must be described with sufficient certainty as to identify it properly.

In CA, the writing need not have been in existence at the time the will was executed if it only disposes of the testator’s personal property.

Question 23

Anti-lapse Statute

Answer 23

Lapse occurs when a devisee predeceases the testator. Under common law, the devisee and the devisee’s issue would receive nothing and the devise would fall into the residuary gift. Under CA’s anti-lapse statute, the gift may pass to the devisee’s issue if (1) the devisee is blood-related to the the testator, and (2) has surviving issue

Question 24

Ademption by Extinction

Answer 24

Ademption by extinction occurs when a will makes a SPECIFIC gift but that gift is no longer in the testator’s estate when the testator died. Under the traditional rule, the devisee would take nothing. Under modern/CA law, courts look to the testator’s intent to determine whether the testator intended ademption. Courts generally try to avoid ademption by identifying replacement property.

When a specific gift adeems, the intended beneficiary of that gift receives the remaining portion of that gift, or, if no part remains, nothing.

Question 25

Omitted Spouse/Partner

Answer 25

If a marriage or partnership occurs after the will is executed, the omission is treated as a partial revocation.

The omitted spouse or partner is entitled to an intestate share unless:
(1) the omission was intentional
(2) the spouse was provided for outside of the will and that provision was intended to be in lieu of a disposition

An omitted spouse is entitled to all of the decedent’s CP and 1) all of the decedent’s SP if there are no surviving lineal descendants, parents, or issue of parents, (2) one-half of the SP if survived by one lineal descendant or by a parent or issue of a parent, or (3) one-third of the SP if survived by more than one lineal descendent.

Question 26

Omitted Children

Answer 26

A child that is born/adopted after the execution of the will receives a share equal to what the child would have received via intestate share (if the decedent had died intestate).

Exceptions:
(1) will indicates that omission was intentional on part of testator
(2) the testator had other children at the time the will was executed and the testator left substantially all of his estate to the parent of the omitted child
(3) the testator was provided for outside of the will and the testator intended this to be in lieu of a specific devise to the child

Note - if the testator executes a valid codicil, the entire will be considered to have been published as of the date of the codicil. In such case, the omitted child many no longer be considered an omitted child because the child would have been born before the execution of the will

Question 27

Abatement

Answer 27

If the estate does not have enough assets to satisfy the gifts in the will, the gifts will be abated/reduced in the following order:
(1) intestate property
(2) residuary gifts
(3) general gifts
(4) specific gifts

Question 28

Insane Delusion

Answer 28

False belief to which the testator adheres to despite all reason and evidence to the contrary

• make sure to talk about causation (that insane delusion caused the testator to make a devise he or she otherwise would not have)

Question 29

Undue Influence - 4 approaches

Traditional approach vs. California approach

Answer 29

Traditional approach -
contestant must show (1) susceptibility, (2) motive, (3) opportunity, and (4) causation (SCOM)

California approach - contestant must apply 4-factor test:
(1) testator’s vulnerability, and whether the influence knew or should have known of the vulnerability
(2) influencer’s apparent authority
(3) influencer’s actions or tactics
(4) the equity of the result

Evidence of vulnerability includes incapacity, illness, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency where the influencer knew or should have known of the alleged victim’s vulnerability.

Question 30

Undue influence - rebuttable presumption when a confidential relationship exists

Answer 30

Confidential relationship - a rebuttable presumption of undue influence arises when:
(1) the testator has a confidential relationship with the principal beneficiary
(2) the principal beneficiary participated in executing the will
(3) the gift to the principal beneficiary is unnatural
The principal beneficiary can rebut this presumption through clear and convincing evidence. If beneficiary cannot rebut this presumption, beneficiary will only take his or her intestate share (if any)

Question 31

Undue influence - statutory presumptions (only for CA)

Answer 31

CA holds invalid any provision making a gift to
(a) the person who drafted the will, or
(b) the person who transcribed (or caused to be transcribed) the will and who was in a fiduciary relationship with the testator at the time the will was executed
(c) a care custodian of the testator if the testator is a dependent adult and services were provided within 90 days of the execution of the will (but does not apply to relatives of the testator)

Presumption can be overcome through clear and convincing evidence

Question 32

Mistake and ambiguities

Answer 32

Extrinsic evidence is admissible to resolve patent and latent ambiguities, as well as to establish mistake

Question 33

Undue influence (summary)

Answer 33

Undue influence analysis requires going through the 4 pt. traditional or CA approach, then the presumption of undue influence that arises from a confidential relationship, then the CA statutory presumptions.

If the contestatnt

Question 34

Adoption

Answer 34

When a child is adopted, he or she will be treated as a natural child for purposes of inheritance

Question 35

Per Stirpes

Answer 35

Estate is divided into the total number of ancestor’s children who survive or leave issue who survive. They then take equal shares.

Question 36

Right to set aside transfer

Answer 36

The surviving spouse or domestic partner of a decedent who died while domiciled in California can set aside a transfer of QCP made by the decedent during marriage (1) without the written consent of the surviving spouse or domestic partner and (2) made for less than adequate consideration.

Eligible property includes property subject to the right of survivorship

Spouse can choose to ratify transfer; otherwise, transferee must return 1/2 of the property or proceeds from the property, or 1/2 of the value at transfer

Question 37

Acts of Independent Significance

Answer 37

A will may provide for the designation of a beneficiary or the amount of a disposition by reference to some unattested act or event occurring before or after the execution of the will or before or after the testator’s death, if the act or event has some significance apart from the will

Basically, if a person pledges to devise some portion of his or her property to his employees, and the employees change from when the will is executed to when the person dies, the employees at death will get the devised shares even if they did note exist when the person executed the will

Question 38

Integration

Answer 38

Under the doctrine of integration, a will consists of all pages that are present at the time of execution and intended to form part of the will. This intent can be shown by the physical connection of the pages or the ongoing nature of the will’s language.

Question 39

Conservator

Answer 39

In California, a court-ordered conservator for an individual who lacks testamentary capacity can make a will or codicil for that individual.

Question 40

Surviving spouse

Answer 40

Must be legally married at time of death and must survive testator by 120 hours to take by intestacy

Question 40

Abatement

Answer 40

Satisfying omitted spouse or omitted child shares may cause other gifts in estate to abate

Any share owed is satisfied first from the estate before distributing the will

If estate is not sufficient, shares of beneficiaries of will or trust may be distributed to omitted spouse or child pro rata