Wills

Question 1

Will Validity

Answer 1

Valid if complies with:
California Law
law of state executed
Law of domicile/place of abode/national at time of death

California law: Last Call its Fine
Legal capacity
Testimentary Capacity
Testimentary Intent
Formalities

Question 2

Legal Capacity

for will validity

Answer 2

Individual 18 years of age or older at date of making it
Conservator make make will for conservative if authorized by court.

Question 3

Testamentary Capacity

for will validity

Answer 3

Mental Capacity at time the will is executed:
1. understand the nature of the act (making the will is to dispose of property upon death).
2. nature and extent of testator’s property: exact knowledge not needed
3. persons who are natural objects of the testator’s bounty ( know familty situation)

Where person adjudicated incompetent only presumption of lack of required mental capacity and can be overcome by proof they can conduct ordinary business.

Question 4

Testamentary Intent

Answer 4

Present intent to make a particular instrument their will

Question 5

Formalities of Attested Wills

Answer 5

In writing & signed in front of two witnesses who know its a will and also sign during testator’s lifetime.

1. in writing
2. signed by testator (any mark with intent to authenticate will) (proxy okay if in testator’s presence and at their direction or for conservatee pursuant to court order).
3. signing in joint presence of at least two witnesses (no minimum age but must be competent)
4. witnesses sign will during testator’s lifetime (doesn’t need to be in front of eachother or testator)
5. witnesses understand that document is testator’s will (don’t need to know contents)

Question 6

Interested Witnesses

Answer 6

Will remains valid but gift to interested witness is presumed to be procured through duress, menance or undue influence but can take: if rebuts presumption, there are at least two other disinterested subscribing witnesses or interested witness is also an heir and may receive up to their intestate share.

Question 7

Holographic Will

Answer 7

in Testator’s handwriting
permitted if singature and material provisions of the will are in testator’s own handwriting then witnesses not required.

Question 8

California Statutory Will

Answer 8

Different formalities: testator must complete blanks and sign will. Each witness must observe signing and must sign in presence of testator

Question 9

Classification of Testamentary Gifts

Answer 9

Specific - gift of particular item of property distinct from all other objects
General Bequest - general economic benefit payable out of the general assets of the estate not identifying any particular source of payment (gifts not yet purchased but for the executor to do are general).
Demonstative Legacy - general amount to be paid from designated source or fund. (specific if source is available and general to any shortfall).
Residuary Gift - remainder of estate

Question 10

Ademption by Extinction

Answer 10

Applies only to specific devises and bequests - beneficiary takes nothing.
Partial Ademption - beneficiary takes remaining portion.
California takes testator’s intent into consideration when determining intent to adeem. (proceeds from sale of property can be traced then not adeemed).

Question 11

Exceptions to Ademption Doctrine

Answer 11

Balance of Purchase Price where purchaser owes testator money
Proceeds of Condemnation, Insurance, or Foreclosure
Proceeds from Sale by Guardian or Conservator

Question 12

Corporate Securities Rules

Answer 12

Considered general legacy but specific if it contains words of possession : MY 100 shares of Stock or identification numbers.

Change in form - result of merger consolidation reorg or similar action initiated by entity.

Question 13

Ademption by Satisfaction

Answer 13

Proof - testator provides for satisfaction in the instrument itself or in a contemporaneous (to the gift) writing or
donee ack. in writing that the gift is one is satisfaction.

Question 14

Exoneration of Liens

Answer 14

Not unless will so directs

Question 15

Abatement

Answer 15

Reduction of testamentary gifts where estate ssets are not sufficient to pay all claims and satisfy all bequests. Will terms override but generally and pro rata:
1. Intestate property
2. Residuary Property
3. General gifts to non relatives
4. General gifts to relatives
5. specific gifts to non relatives
6. specific gifts to relatives

Question 16

Will: Survival

Answer 16

just clear and convincing evidence

Question 17

Lapsed Gifts

Answer 17

1. express terms of will
2. Gift saved by anti lapse statute
3. via residuary clause
4. via intestacy

Question 18

Anti lapse statute

Answer 18

substitutes descendants of predeceased beneficiary if beneficiary was:
kindred (blood or legal reletive) and left descendants who survived testator.

Question 19

Residuary issues

Answer 19

If anti lapse does not apply then remaining residuary’s split the residuary.

Question 21

Will Construction Maxims

Answer 21

Will constructed as a whole, last contradictory provision prevails, attempt to give effect to all words testator included in will

Question 22

Will Ambiguity

Answer 22

Obvious, Latent, or No Apparent - ct will consider extrinsic evidence

Question 23

Incorporation by Reference

Answer 23

Treated as if written out in full so long as:
* testator intends to incorporate extraneous document
* Document is in existence at time will executed.
* will sufficiently identifies material to be incorporated so it would not be any other document.
When document giving away tangible personal property not in existance when will executed if : unrevoked will refers to the writing, document is dated and either handwritten or signed by testator and document describes items and recipients with reasonable certainty. Cannot be Cash or business property and in total may not exceed $25K or $5 for a single item.

Question 24

Conditional Wills

Answer 24

operates only if certain event occurs or does not occur. Presumption against them and construed as general rather than conditional, if possible and parol evidence not allowed to show condition.

Question 25

Codicil

Answer 25

Must be made with same formalities.
Proof od codicil acts as proof of will and thus a valid codicil may bootstrap an otherwise invalid will.

REMEMBER FORMALITIES REQUIRED (unless holographic codocil!).

Question 26

Pour over Gift to Intervivos Trust

Answer 26

provision in will making gift to intervivos trust. California permits pour over of estate assets to an inter vivos trust as amended on the testator’s death/after testator’s death, if trust is identified in will and terms are set forth in written intrument (other than will) executed before, concurrently with, or within 60 days after the execution of the testator’s will.
Property goes into trust as trust exists on date of testator’s death.

Question 27

Integration

Answer 27

External: When one or more will or codicils exist - external, later will or codicil will revoke provisions of prior will or codicil.
Internal: Will proponent must show pages present at time of execution are those present at time of probate- physical attachment or coherence of pages raise a presumption that pages were present also testimony or other extrinsic evidence.

Question 28

Combination Wills

Answer 28

Joint will - single doc containing wills of two or more people
Reciprocal /mutual wills - wills of two persons containing parallel dispositive provisions

Question 29

Contractual Wills

Answer 29

executed or not revoked as consideration for a contract . Contract to make, not to make or not to revoke a will is valid. (Contract Law Governs)(does not stop probate but allows for action in quasi contract for consideration provided usually results in a constructive trust on the property received by will beneficiaries).

Proof:
* provisions of will or other instrument stating material provisions of K
* express reference in the will to the contract and extrinsic evidence to the terms
* writing signed by the decedent evidencing K
* Clear and convincing evidence of agreement between decedent and claimant/promise that is enforcible in equity.

Revocable if both parites still alive

Question 30

Revocation of Wills by Operation of Law - Marriage/DP after execution of Will

Answer 30

Marriage or DP after execution of Will - unintentional omission only can take in addition to share of community and quasi community property - intestate share of decedent’s estate but may not exceed 1/2 value of decedent’s separate property in the estate.

Exception - intentional omission, waiver(in writing and signed by waiving spouse/dp), provided for with non probate transfers (life insurance etc…) with intent that transfer be in lieu of testamentary provision as shown by statements of the testator, amount of transfor, other evidence. And Care custodian marriage that provided services and marriage began while services were provided or within 90 days after last provided and decedent died less than 6 months after marriage began less clear and convincing evidence no fraud/undue influence.

Question 31

Revocable - Dissolution/Annulment of marriage or DP

Answer 31

Divorce must be final!
unless expressly stated otherwise, any disposition of property made to the former spouse/dp is revoked including - non probate transfers except life insurance pollicies

Remarriage /DP revives

treated as predeceased

Question 32

Pretermitted or Omitted Children

Answer 32

meant to address unintentionally omitted children- if decedent fails to provide for a child born/adopted after execution of all testimentary instruments then child receiveds an intestate share of the property.

Also child thought dead but alive when will executed or unknown to the testator bc unaware of child’s birth.

Will must not show an intent to exclude child, provide for child by transfer outside the will or revocable trust and intent that it is in lieu of provision in will by statements of testator, amount of transfor or other evidence, or when estate is devised substantially to the opther parent of the omitted child.

extrinsic evidence okay to show lack of intent to omit but not intent to omit. where iffy goes to pretermitted claimant
Receives intestate share

Question 33

Slayers/Murderers

Answer 33

felonious and intentially murder of decedent is not entitled to any property or benefit under the will/intestate/anything else.

Killer deemed to have predeceased the decedent and anti lapse statute deemed inapplicable so that the killer’s issue cannot take in killer’s stead.

Preponderance of evidence if no conviction of killing.

Question 34

Revocation by physical Act

Answer 34

act of destruction must be done with simultanious intent to revoke. If done by another must be done in the presence of the testator and at their direction.

Must be done with sound mind- undue influence, duress, or fraud ineffective.

Will can be revoked in part as well as in whole in California Interlineation of a holograph constitutes both revocation and a new disposition. Prior signature is adopted when interlineation made.

Can only decreaste not increase gifts.

BUT - physical destruction of a codicil does not revoke a will even if intent unless intent and they are on the same page. physical destruction of a will does revoke all codicils unless the testator does not so intend.

Question 35

Revocation by Subsequent will or Codicil

Answer 35

Express Revocation- formally stated.
Implied - revocation by inconsistency- completely disposes of property then revocked but only partially then only to extent inconsistent. Mention of a child in either will is sufficient to preclude the child from claiming as a pretermitted heir.

Question 36

Presumption of Non-Revocation

Answer 36

if will is found in normal location and no suspicious circumstances surrounding it

If not found/damaged condition presumed revoked.

Question 37

Lost/Destroyed Wills

Answer 37

Will proponent may prove will cannot be found due to fire, flood, earthquake, riot, theft, etc.. and rebut the presumption of revocation.

Where lost/destroyed without revokation. Will is admissible to probate on adequate proof of its contents in absence of any statute to the contrary.

Question 38

Revival of Revoked Wills

Answer 38

California follows the intent approach court will look at extrinsic evidence to determine what the testator intended.

but Doctrine of Dependent Relative Revocation - testator revokes will under mistaken belief that another disposition of their property would be effective and but for this belief it would not have been revoked. DRR applies only if it comes closer to what the testator tried but failed to do than would an intestate distribution.

1. was revocation of will 1 impliedly conditioned on validity of will 2.
2. Would testator prefer will 1 to intestate?

Question 39

Will Contests - Standing & burden of P

Answer 39

only interested parties - those whose interests would be adversely affected by the admission of the will have standing to conteest the will- heirs, beneficiaries of proior wills. They have the burden of proof. NOTE: creditors, executors, and testamentary trustees not interested pariteis.

Question 40

Timing/Notice

Answer 40

120 days after will is admitted to probate

Question 41

Grounds for Contest

Answer 41

1. defective execution/failure to meet elements of valid will
2. revocation
3. lack of testamentary capacity (insane delusion too- but only where facts do not exist and no rational person would beleive they do exist)only if nexus between property disposition and insane delusion
4. lack of testamentary intent
5. undue influence or duress -
6. fraud
7. mistake

Question 42

Undue Influence

Answer 42

1. excessive persuasion that causes another to act or refrain from acting
2. by overcoming that person’s free will, and
3. resulting in a property disposition the person would not otherwise have made.

To establish:
* influence exerted on testator
* effect of influence overpower the mind and free will of testator(overcoming free will)
* product of the influence was will that testator would not have executed but for the influence (causation)

Free will must be destroyed nagging/threatening not enough

Question 43

Circumstantial Evidence to support undue evidence

Answer 43

• Victim’s vulnerability(ability to resist)
• influencer’s apparent authority (relationship to victim)
• actions/tactics of influencer (control of necessities or perople/use of affection intimidation) and
• equity of the result.

Question 44

Rebuttable presumption of undue influence

Answer 44

• confidential relationship - not between spouses or DPS but attorney client, doctor patient, caretaker etc…
• beneficiary actively participated in drafting the will (presnence when expressed desire to make will, recommending attny, giving attny instructions re content, knowledge of contents prior to execution, securing witnesses for the will, present when will executed, safeguarding the will after its execution; and
• beneficiary unduly benefits from the instrument.

Question 45

Statutory Presumption of Fraud or Undue Influence

Answer 45

1. drafter (conclusive with drafter’s family, cohabitators or employed by drafter)
2. transcriber and in a fiduciary relationship with the transferor when instrument was transcribed
3. care custodian of dependent adult transferor if executed during the provision of substantial and ongoing health/social services or within 90 days before or aftersards
4. care custodian who commenced marriage, cohabitation or DP while providing services or wihtin 90 days after last provided if transfer occurred/instrument executed less than six months after cohabitation/marriage or DP commenced.

Question 46

Fraud

Answer 46

• False representation made to testator
• knowledge of falsity by person making statement
• testator reasonably beleived the statement and
• false statement caused testator to execute a will they would not have made but for misrepresentation (reliance)

Question 47

Fraud in the factum

Answer 47

Execution of document where testator was deceived as to whether it was a will and what it contained.

Question 48

Fruad in the Inducement

Answer 48

Testator knows that they are executing a will and what it contains but is deceived as to some extrinsic fact and makes the will or gift based on that fact. (Son convinces Father Daughter is evil).

Note, mistake is not remediable.

Question 49

Mistake as to contents

Answer 49

Reformation available if clear and convincing evidence establishes that the will contains a mistake in the testator’s expression of intent at the time the will was drafted, and established the testator’s actual specific intent at the time will was drafted.

Question 50

Remedies for Wrongful Conduct

Answer 50

• Deny probate (entire will)
• Constructive trust in favor of intended beneficiary
• Tortious interference with and Expectancy: P had reasonable expectation of receiving interest, but for D’s interference they owudl have, D had knowledge of P’s expectancy and deliberately interfered with it; Interference was wrongful/tortious in own right, and damaged teh P - Only if there is no remedy (will contest) or a non probate asset
• wrongful taking - liable for twice value of property and potentially reasonable attorneys fees and costs.

Question 51

No Contest Clauses

Answer 51

Court will enforce unless contestant had probable cause to file contest:
Strictly construed and applied only where:
* brought without probable cause
* claim that transforee does not own property - unless probable clause
* Creditor’s claim - must be expressly provided for

Question 52

Probate and Estate Admin - Personal Rep

Answer 52

Executor named in will, administrator persona who administers but not named in will. In California must be over 18, capable of executing duties, can be subject to removal for waste/wrongful neglect , must be US resident, Unless executor: cannot be surviving busienss partner or interersted partner objects to appointment.

Question 53

Personal Rep’s Duties

Answer 53

Give notice to devisees, discover and collect assets and file inventory, manage assets, pay expenses, distribute property.

Paid either via will or through statutory comp

Question 54

Creditor Claims

Answer 54

1. Depts to US/CA
2. Admin expenses
3. obligations secured by mortgage, deed of trust, liens
4. Funeral expenses
5. Expenses of last illness
6. family allowance
7. wage claims
8. general debts (unsecured judgments etc…).