WILLS

Question 1

Choice of Law

Answer 1

A will can probated in CA if it complies with the formalities of execution of either: 1) CA; 2) place where executed; or 3) place of domicile at time of execution.

Question 2

Attested Will

Answer 2

For an attested will to be valid, it must be: 1) in writing; 2) signed by the testator, or by another in his presence at his direction, or by a conservator pursuant to a court order; 3) the testator signed or acknowledged his signature in the presence of two witnesses; 4) the witnesses sign within the testator’s lifetime; and 5) the witnesses understand that the instrument is the testator’s will.

Question 3

Attested Wills

Harmless Error - Failure to meet attestation requirements

Answer 3

A will that does not comply with witnessing requirements can be probated if will proponent establishes by Clear and Convincing Evidence that T intended instrument to be his will at time of signing.

Question 4

Interested Witness

Answer 4

When a witness is also a beneficiary to the will a rebuttable presumption is raised that the gift was procured by wrongdoing unless there are 2 other disinterested subscribing witnesses. If W rebuts the presumption, she takes gift per the will. If W cannot rebut, she takes amount not exceeding intestate share.

Exception - Presumption does not apply if witness is only taking in fiduciary capacity (ex. trustee)

Question 5

Revocation by Subsequent Instrument

Answer 5

A subsequent valid will can totally revoke a prior will if: (1) a clause in the subsequent will expressly revokes the prior will, or (2) the provisions of the subsequent will are entirely inconsistent with the terms of the prior will.

Question 6

Revocation by Physical Act

Answer 6

A testator or someone in testator’s presence at his direction can revoke a will by tearing, cancelling, burning, or destroying with present intent to revoke. In order to revoke by tearing or cancelling, the will must be torn or cancelled through a material part.

Question 7

Cancellation / Interlinenation

Answer 7

Cancellation occurs when the testator crosses out a provision of a will. Interlineation occurs when the testator writes above or between the lines of a cancellation.

Question 8

Duplicate Wills

Answer 8

If there are original duplicates (not photocopies) of fully executed wills, and T, or someone in T’s presence and at his direction, revokes one of the originals by physical act, the other is revoked as a matter of law.

Question 9

Mutilated Wills

Answer 9

If a will is found in mutilated condition at T’s death, and was last seen in T’s possession, there is a rebuttable presumption that T mutilated with intent to revoke.

Question 10

Lost / Destroyed Will

Answer 10

A lost or destroyed will may still be probated if there is adequate proof of its terms, which may be proven by a copy of the will or by testimony of people who knew of its contents.

Question 11

Codicil

Answer 11

A codicil is a later testamentary instrument intended to revoke or amend an existing will, in whole or in part, and must be executed with the same formalities as a will.

Question 12

Holographic Will / Codicil

Answer 12

CA recognizes holographs. To be valid, a holograph must be signed and the material terms (beneficiary’s names and gifts made) must be in testator’s handwriting.

Question 13

Dependent Relative Revocation

Answer 13

DRR applies when the testator revokes his will or provision thereof with the mistaken belief that the subsequent disposition is valid. The court will disregard the revocation if the testator would not have revoked the prior disposition but for the mistaken belief.

Question 14

Revival

Answer 14

Revival of a revoked will concerns an original will that was revoked by a subsequent instrument, which was itself revoked by physical act or subsequent instrument. The original will may be revived by reexecution or republication.

Question 15

Revival by Reexecution

Answer 15

A revoked will can be reexecuted if the testator acknowledges his signature on Will-1 or acknowledge will itself and have two witnesses attest to it.

Question 16

Revival by Republication

Answer 16

A revoked will still in existence may be revived through publication of a subsequent codicil if the prior will was valid and was not revoked by destruction.

Question 17

Integration

Answer 17

A will may be more than one document. Documents that are physically present at the time of the will’s execution and intended by the testator to be a part of the will are integrated into the will.

• EE admissible to show papers constitute will.

Question 18

Incorporation by Reference

Answer 18

To incorporate a document by reference it must be: 1) in existence at the time the will was executed; 2) sufficiently described in the will; and 3) proven that the document is the one described in the will.

Question 19

Acts of Independent Significance

Answer 19

A testator may dispose of property by reference to acts of the testator or third party, or events if the acts have a significance independent from its effect on the disposition in the will.

“I leave all my property to church I am a member of at the time of my death”
T bequeaths contents of safe deposit box to A.
No independent significance if T bequeaths items in desk drawer b/c many would have access

Question 20

Omitted Spouse

Answer 20

A spouse is omitted if she married the testator after execution all testamentary documents and was not provided for in the will. The testator is entitled to an intestate share unless: 1) there is a valid prenup; 2) the spouse was provided for outside the will; or 3) the testator intentionally excluded the spouse from the will.

Question 21

Omitted Child

Answer 21

A child is omitted if he was born after testator executed all testamentary instruments and was not provided for in the will. The child is entitled to an intestate share unless: 1) the child was provided for outside the will; 2) the child was intentionally excluded from the will (must be apparent on face of will); or 3) testator devised a substantial portion of the estate to the child’s parent.

If testator unintentionally failed to provide for a child because he was unaware of his birth or believed the child was dead, the child will receive a share equal in value to the share he would have received if the testator had died intestate.

An omitted child’s share is taken first from the testator’s estate not passing by will or trust. If that is not sufficient, the share is taken pro rata from all of the beneficiaries taking under the will/revocable trust.

Question 22

Abatement - Omitted Child

Answer 22

An omitted child’s share is satisfied first from the testator’s estate not passing by will/trust, and if insufficient, by taking a pro rata share from all of the beneficiaries taking under the decedent’s will and/or trust. The child’s share will be subtracted from the entire trust value and then the trust terms apply to the remainder.

Ex. T has 3 children so omitted child takes 1/3 of estate. Entire trust value is $300K, so omitted child takes $100K. Applying terms of the remainder, M takes 1/2 of remainder (100K) and A/B take 1/4 each ($50K).

Question 23

Order of Abatement

Answer 23

Unless the will sets out an order of abatement, estates abate in the following order: (1) intestate property; (2) residuary estate; (3) general gifts to non-relatives; (4) general gifts to relatives; (5) specific gifts to non-relatives; (6) specific gifts to relatives. Gifts are abated pro-rata within each category.
Demonstrative gifts are treated as specific gifts for abatement purposes, but if the fund is insufficient, it is treated as a general gift.

Question 24

Lapse

Answer 24

A gift lapses when a beneficiary predeceases the testator. A lapsed gift will fall into the residue or if there is no residuary estate, passes by intestate sucession.

Question 25

Anti-Lapse

Answer 25

Under anti-lapse, the gift will not lapse if the predeceased beneficiary was blood relative of T or T’s surviving, deceased, or former spouse AND left descendants who survived the testator. The beneficiary’s surviving descendants take by representation.

Question 26

Lapse in the Residuary Estate

Answer 26

If T devises her residuary estate to more than one beneficiary and one of the residuary devises lapses and anti-lapse does not apply because the predeceased beneficiary is not T’s blood relative, the surviving residuary beneficiaries take the predeceased share.

Question 27

Residuary

Answer 27

Residuary is the remainder of Testator’s estate after paying debts, expenses, and gifts.

Question 28

Ademption by Extinction

Answer 28

A specific gift is a gift of a particular item of property distinct from all other objects in testator’s estate.

A general gift is a gift payable out of the general assets of the estate without requiring any particular source of payment.

A demonstrative gift is a hybrid of a specific and general gift where the testator intends to make a general gift, but also identifies the source that the gift should come from.

A gift is adeemed by extinction when the testator makes a specific devise of property and it is then later sold prior to the testator’s death. If the testator did not intend for the gift to fail, then the gift is not adeemed.

Question 29

Per Capita Distribution

Answer 29

CA follows a per capita distribution system where the assets are divided at the first generation of the living root. The assets are distributed evenly by representation.

Question 30

Simultaneous Death

Answer 30

A will beneficiary cannot take unless he survived the decedent by clear and convincing evidence. If it cannot be determined who died first, property of each is treated as if each predeceased the other. The gift will either lapse or distributed under anti-lapse.

When it cannot be established by clear and convincing evidence which spouse survived the other, 1/2 of the CP & QCP passes to each spouse’s estate.

When it cannot be established by clear and convincing evidence which joint tenant survived the other, the property is divided equally and goes to each joint tenant’s estate.

An intestate heir cannot take by intestate succession unless there is clear and convincing evidence that the heir survived the decedent by 120 hours unless his share would go to the state if it lapses.

Question 31

CP Devise in Will

Answer 31

Testator can only devise his 1/2 interest in CP in a testamentary instrument.

Widow’s Election - When T attempts to dispose of more than 1/2 share of CP, widow may either take under the will or elect 1/2 share of CP, but must relinquish gifts under the will.

Question 32

QCP Devise in the Will

Answer 32

Unlike CP, spouse does not own an undivided interest in QCP during QCP owner’s life. Non-owner spouse has no power of testamentary disposition if she dies first.

Surviving Non-Owner Spouse can set aside 1/2 of transfers of QCP that occur during marriage if: 1) decedent died in CA; 2) if decedent transferred QCP without receiving consideration or written consent of spouse; and 3) decedent retained possession or rights to income of property; or 4) decedent held title as joint tenants