Wills Flashcards
What is the California approach to determining undue influence?
Undue influence is excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and that results in inequity.
CA courts consider 4 factors:
(1) the vulnerability of the victim (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),
(2) the influencer’s apparent authority (evidence includes one’s status as a fiduciary, family member, care provider, health care or legal professional, spiritual adviser, expert, or other qualification),
(3) the actions or tactics used by the influencer ( including (a) control over necessaries of life, medication, the victim’s interactions with others, access to information, or sleep (b) use of affection, intimidation, or coercion and (c) initiation of changes in personal or property rights and use of haste or secrecy in effecting those changes), and
(4) the equity of the result (the economic consequences to the victim, any divergence from the victim’s prior intent, and the appropriateness of the change in light of the length and nature of the relationship, among other considerations).
Note: A will that is found to have been the product of undue influence can be invalidated in whole or in part so long as the overall testamentary scheme is not thereby altered.
When will fraud or undue influence be presumed for the creation of a will?
When the will donates to:
(1) the person who drafted it;
(2) a person in a fiduciary relationship with the transferor who transcribed the instrument (or caused it to be transcribed);
(3) a care custodian of the transferor adult during the period services were provided (or within 90 days); of
(4) a cohabitant or employee of any fo the above people (in 1-3).
Exceptions: (1) when beneficiary is a blood relative or cohabitant of the transferor; (2) when the property transferred is valued at $5,000 or less; and (3) when an independent attorney reviews the instrument and counsels the transferor without the beneficiary’s presence
What is the omitted child doctrine?
If a decedent fails to provide for a child born or adopted after the execution of the will, then the omitted child can receive a share equal to that which the child would have received had the decedent died intestate.
What is California’s Anti-Lapse Statute?
Under California’s anti-lapse statute, if the gift was made to a blood relative of the testator, and the relative predeceased the testator but left issue, then the issue succeeded to the gift.
What is lapse?
Under common law, if a beneficiary died before the testator, then the gift failed and went to the residue unless the will provided for an alternate disposition. Absent a residuary clause, the gift will pass through intestacy.
