Wills

Question 1

Validity of a Will under California Law

Answer 1

A will is valid in CA if it is valid under:
1. CA law,
2. the law of the State where the will was executed, or
3. the law of the State where the testator was domiciled at the time of execution or death.

Question 2

Will Execution Requirements

Answer 2

A valid will requires:
1. a writing,
2. signed by the testator (or someone at his discretion and in his presence),
3. in the presence of two witnesses,
4. the witnesses must sign during the testator’s lifetime, and
5. the witnesses must understand that the writing is a will.

Question 3

Holographic Will

Answer 3

• A holographic will is handwritten and signed by the testator, but not witnessed.
• In CA, a holographic will is valid if all material terms (names of beneficiaries, gifts) are in the testator’s handwriting.

Question 4

Codicil

Answer 4

• A codicil is an instrument that modifies, amends, or revokes an existing will.
• A codicil must satisfy the same formalities as a will.

Question 5

Modification of a Will by Codicil

Answer 5

• Execution of a codicil republishes the will.
• A validly executed codicil will also cure any interested witness problems with the original will.

Question 6

Ambiguities in a Will

Answer 6

A court will consider extrinsic evidence to clarify any ambiguities in a will.

Question 7

Acts of Independent Significance

Answer 7

A will may dispose of property by reference to acts and events, if they have independent significance apart from the will.
(e.g. A will saying “to each person in my employ at the time of my death.”)

Question 8

Incorporation by Reference

Answer 8

A document or writing may be incorporated into a will by reference, if:
1. it was in existance at the time the will was executed,
2. it is sufficiently described in the will, and
3. the testator indended to incorporate it.

Question 9

Testator Gift of CP & SP

Answer 9

In any will, a testator may gift his/her share of the CP, and any SP he/she owns.

Question 10

Revocation by Physical Act

Answer 10

• A will is revoked by physical act, if:
  1. the testator intended to revoke the will, and
  2. the will is burned, torn, or destroyed.
• A will executed in duplicate is also revoked if one of the duplicates is revoked by physical act.

Question 11

Revocation by Subsequent Will or Codicil

Answer 11

A testator can revoke a will by executing a subsequent valid will or codicil.

Question 12

Revocation by Divorce

Answer 12

In CA, any gifts to a spouse are revoked upon divorce.

Question 13

Dependent Relevant Revocation

Answer 13

• The DRR doctrine cancels a revocation.
• It applies when the testator would not have revoked his original will but for the mistaken belief that another will he prepared would be valid.

Question 14

Revival of Revoked Wills

Answer 14

• A will revoked by physical act will be revived if a testator shows intent for its revival.
• A will revoked by a subsequent instrument can be revived if the testator republishes the will by a subsequnet will or codicil that complies with the will execution formalities.

Question 15

Challenging the Validity of a Will

Testamantary Capacity

Answer 15

To have sufficient capacity to ececute a will, a testator must:
1. be at least 18 years old,
2. understand the nature and extent of her property, and
3. understand the natural beneficiaries (i.e. her relatives, friends).

Question 16

Challenging the Validity of a Will

Interested Witness

Answer 16

• A will is only valid if it is signed by the testator in the presence of two disinterested witnesses.
• Any gifts to an interested witness (a beneficiary under the will) are presumed invalid for undue influence.

Question 17

Challenging the Validity of a Will

Undue Influence

Answer 17

A will is invalid if it is executed under undue influence.

Under the common law, undue influence is presumed if:
1. a confidential relationship existed between the testator and the wrongdoer,
2. the wrongdoer actively participated in the drafting the will, and
3. there is an unnatural result.

In CA, undue ifluence is presumed if the testator makes a donative transfer to:
(a) the person who drafted the will,
(b) a care custodian,
(c) a person in a fiduciary relationship with the testator, or
(d) a cohabitant or employee of any one of (a) to (c).

Question 18

Rules Regarding How Assets Pass

Terms of a Will Given Effect When Probated

Answer 18

The terms of a will are given effect at the time the will is probated or after the testator’s death.

Question 19

Rules Regarding How Assets Pass

Lapse of Gifts & Anti-Lapse Statute

Answer 19

• Generally, a gift fails (lapses) if the beneficiary of the gift does not exist at the time of the testator’s death.
• However, CA has an anti-lapse statute, under which a gift will not lapse, but instead pass to the deceased beneficiary’s issue.

Question 20

Rules Regarding How Assets Pass

Per Capita by Representation

Answer 20

Under Per Capita by Representation, the estate is divided into one equal share for each:
1. surviving descendant (children, children’s children…) in the generation nearest to the decedent (dead person), and
2. deceased descendant in the same generation who left surviving descendants.

Question 21

Rules Regarding How Assets Pass

General Gifts

Answer 21

A general gift is nonspecific and is satisfied from any of the funds remaining in a testator’s estate.

Question 22

Rules Regarding How Assets Pass

Specific Gifts

Answer 22

A specific gift is one that is specifically identified, such as real property or persona property.

Question 23

Rules Regarding How Assets Pass

Residual Gifts

Answer 23

A residual gift is a gift of any property remaining after the distribution of the estate to identified beneficiaries.

Question 24

Rules Regarding How Assets Pass

Ademption

Answer 24

A specific gift is adeemed (becomes void) if the testator does not own it at the time of death.

Question 25

Rules Regarding How Assets Pass

Abatement

Answer 25

• Abatement is the process of reducing gifts. It occurs when assets are insufficient to cover debts, expenses, and gifts.
• Gifts abate depending on class and in the following order: residuary, general, and then specific.

Question 26

Rules Regarding How Assets Pass

Adopted Children

Answer 26

Adopted children inherit from their parents as if they were natural born children.

Question 27

Intestate Distribution - CP

Answer 27

A surviving spouse is entitled to the decedent’s share (1/2) of CP and QCP. The other half is already owned by the surviving spouse.

Question 28

Intestate Distribution - SP

Answer 28

• As to SP, the surviving spouse takes:
  The entire share - if the decedent did not leave any surviving issue, parent, brother/sister, or issue of a deceased brother/sister;
  One-half - if the decedent leaves only one child;
  One-third - if the decedent leaves 2 or more children.
• Any share that does not pass to the surviving spouse, passes to decedent’s issue either:
  (a) equally (if all in the same degree of kinship), or
  (b) by Per Capita by Representation.
• If there are no surviving issue, then the estate passes to in the following order: parents, parents’ issue, grandparents, and grandparents’ issue.

Question 29

Omitted Spouse

Answer 29

A surviving spouse not mentioned in a will that was executed before the marriage began, is entitled to an intestate share of the testator’s estate unless:
1. the spouse was intentionally omitted,
2. the spouse was given property outside of the will, or
3. the omission was consistent with a valid prenuptial agreement.

Question 30

Omitted Child

Answer 30

• A child not mentioned in a will that was executed before the child’s birth or adoption, is entitled to an intestate share of the testator’s estate, unless:
  1. the child was intentionally omitted,
  2. the child is supported by transfers outside of the will, or
  3. the testator had more than one child and left all of his estate with the parent of the omitted child.
• A child not mentioned in a will that was executed after the child’s birth is entitled to a share of the testator’s estate only if the child was omitted because the testator was unaware of the child’s existence or believed the child was dead.