Wills 31-38 Flashcards
How is the common law presumption of Undue Influence established?
If:
A confidential relationship existed between the testator and the wrongdoer;
The wrongdoer actively participated in the drafting of the will; AND
There is an unnatural result.
Priority: HIGH
In California, how is the statutory presumption of Undue Influence established?
If the testator makes a donative transfer to:
Person who drafted the will;
A care custodian of a testator who is a “dependent adult”;
A person in a fiduciary relationship with the testator;
A spouse, domestic partner, employee, or related by blood to one of the previous three circumstances; OR
A partner, shareholder, or employee of the firm who drafted the will (or a fiduciary relationship with an ownership interest).
Priority: HIGH
When is a will deemed Fraudulent?
If a person:
Intentionally made a misrepresentation;
Of material fact;
In order to induce the testator to either sign the will or change the contents; AND
The testator did so.
Priority: Low
A will is invalid if it’s the result of an Insane Delusion that caused an unnatural result.
When does an Insane Delusion occur?
When the testator:
Has a false idea that is not supported by facts; and
Refuses to accept evidence contrary to this idea.
Priority: Low
When are the terms of a Will given effect?
At the time the will is probated OR after the testator’s death.
Priority: Medium
How is a “Pretermitted Child” defined?
A child that is NOT mentioned in the will, because it was executed before the child’s birth or adoption.
*They are presumed to have been omitted accidentally, and thus are entitled to an intestate share of the testator’s estate.
Priority: HIGH
When is a Pretermitted Child NOT entitled to an intestate share of the estate?
If:
The child was intentionally omitted;
The child is supported by transfers outside the will; OR
The testator had more than one child and left all (or substantially all) of his estate with the parent of the omitted child.
Priority: HIGH
When is an Intentionally Omitted Child entitled to a share of the decedent’s estate?
If the child was omitted because the decedent was unaware of the child’s existence or believed the child was dead.
Priority: HIGH
