Wills

Question 1

Capacity to make a Will

Answer 1

1. must be 18
2. understand the extent of property
3. know natural objects of her bounty
4. know the nature of her act

if no capacity, entire will is invalid

Question 2

Insane Delusion

Answer 2

at time of execution,

1. T had a false belief
2. that was the product of a sick mind
3. absolutely no evidenc to support belief
4. delusion affected T’s will

Effect: only that part affected is invalid

Question 3

Fraud (wills)

Answer 3

1. representation
2. of a material fact
3. known to be false by wrongdoer
4. for the purpose of inducing action, and
5. in fact, the action is induced

Fraud in Execution- entire will invalid
Fraud in Inducement of a gift- that part invalid
fraud in preventing revocation - will revoked

Question 4

Undue Influence (wills)

Answer 4

1. prima facie
   - requires 1. susceptibility, 2. opportunity, 3. active participation, 4. unnatural result
   - effect: part effected invalid
2. Case Law
   - 1. confidential relationship, 2. active participation, 3. an unnatural result
   - effect: part affected is invalid
3. Statutory
   - a gift to person who drafte will, a care custodian, or either’s relative is preesumed to be the product of undue influence
   - effect: transferee deemd to have predeceased the testator

Question 5

Mistake in Omission v. Mistake in addition

content of a will

Answer 5

Courts do not rewrite wills; so, misatke in omission no remedy, the court will strike a mistake in addition

Question 6

Mistake (ambiguity) in a Description (wills)

Answer 6

may introduce parol evidence to cure any patent or latent ambiguities

Question 7

Dependent Relative Revocation (DRR)

Answer 7

mistake in validity of subsequent testamentary insturment—

If testator revokes her will, int he mistaken belief that a substatially identical will effectuates her intent, then, by operation of law, the revocaiton of the first is deemed conditional, dependant, and relative to second effectuating T’s intent.

if the second does not, the first is not revoked

Question 8

Pretermitted Child

Answer 8

an accidental omission of a child born or adopted after all testamentary insturments and not provided for in any, will take its intestate share.

Question 9

Integration (of a will)

Answer 9

Which papers make up will?
requirements:
1. intent
2. presence 
can be proven with either physicla or logical connection

Question 10

Incorporation by Reference

Answer 10

1. a document or writing
2. in existence when will was creatd
3. that is clearly identified in will
4. that T intended to incorporate (implied if 1-3 are established)

Question 11

Facts of independent Signficance

Answer 11

Who a beneficiary is, or what gift is given, may be given meaning by facts of signficance independent from testator’s will

allows us to fill in blanks with parol evidence that is trustworthy

Question 12

Writing disposing of Limited Tangible Property

Answer 12

1. referenced in will, dated and signed or handwritten by T
2. dexcribe beneficiaries and gifts with reasonable certainty
3. executed before or after the will
4. 25k total limit, 5k single item limit

Question 13

Validating Pour-over wills

Answer 13

1. incorporation by reference
2. facts of independent significance
   - trust insturment, separate from will, validates pour over will
3. UTATA uniform testementary addtiions to trust act

Discusss all 3 theories

Question 14

Elements for an Attested Will

Answer 14

Traditional Will Formalities:

1. must be in writing
2. signed by T
3. in presence of 2 witness at same time
4. witnesses must sign the will during T’s lifetime
5. and understand the doc is T’s will

CA’s harmless error rule: will cure defects in 3-5 if proponent ofwill establishes T’s intent by clear and convincing evidece

Question 15

Interested Witness Problem (wills)

Answer 15

there is a presumption that a witness-beneficiary secured his gift by wrongdoing, bu it can be rebutted
- if he cannot rebut, his gift is limited to the amount of his intestate share

Question 16

Elements for a Valid Holographic Will

Answer 16

1. signed by T
2. material provisions must be in t’s own handwriting
   - the gifts
   - the beneficiaries

Date not required, but lack of date can cause problems:

• undated holograph invalid as to inconsistency with any other testamentary instrument
• if T could have executed undated holograph during at ime when he lacked capacity, it is invalid

Question 17

Out of State Wills

Answer 17

Will be admitted to probate in CA, if it complies with

1. CA probate code
2. law of place where executed
3. law of t’s domicile at time of execution

Question 18

Revocation by Physicl Act

Answer 18

1. will must be burned, torn, canceled (lining out) destoryed, or obliterated (erase)
2. T must have simultaneous intent to revoke
3. done by T or someone at T’s instruction

Question 19

Revocation and Revival by Subsequent Instrument

Answer 19

Revocation 
- express 
- implied
Revival
- prior wills not autmatically revived if later will revoked- T must manifest intent to revive

Question 20

Omitted Spouse

Answer 20

Spouse not provided for in will, married before all testamentary insturments recevies:

• T’s 1/2 of CP and QP
• A share of T’s SP (but not more that 1/2)

Question 21

Effect of Dissolution of Marriage (wills)

Answer 21

• devises to spouse are revoked by operation of law, will be reinstated if they remarry

Question 22

Ademption and Classification of Gifts

Answer 22

What happens when property is not in estate?

• Specific gifts: adeem by extinction (if not in estate, you get nothing) ask also, did T intend gift to fail?
• General Gifts: do not adeem by extinction
• Demonstrative Gifts: hybrid

Ademption by Satisfaction: (inter vivos gift) established by:

1. will provides for deduction of intervivos gift
2. t decares in contemporaneous writing that gift is a satisfcation
3. ben. acknowledges in writing (at any time) that gift was a satisfaction
4. property was subject of specific gift to ben.

compare advancemnt of inteestate share (basically same rules)

Question 23

Widow’s Election

Answer 23

if spouse tries to dispose of more that 1/2 of cp under his will, the widow can either:

1. take under will or
2. take agaisnt will: receive her intestate share, but cannot take anything under the will

Question 24

Unworthy heirs: Killers

Answer 24

anyone who feloniously and intentinonally kills the decedent cannot take under their will (deemed to have predeceased T)

A criminal conviction is conslusive, but a probate court can determine by preponderance of the evidence

Question 25

Intestate succession

Answer 25

1. Surviving Spouse:
   - gets decednets 1/2 cp and QCP and
   - SP
   
   • All if decedent had no issue, parents or issue of parents
   • if 1 child- 1/2 to spouse, 1/2 to child
   • if 2 or more children, 1/3 to spouse and 2/3 to children
   • if no child but parents: 1/2 to spouse, 1/2 to paretns
2. issue
3. parents
4. issue of parents
5. grandparents
6. issue of grandparents

Question 26

Per Capita with Right of Representation

Answer 26

1. go to first level with any person surviving, perople at that level take per capita (evenly)
2. Deceased at that level take per capita but is distributed by representation to their issue

Question 27

Lapse and Anti-Lapse

Answer 27

Rule of Lapse: if beneficiary does not survive T, then gift lapses (fails)
Anti- Lapse; if beneficary was kindred (blood relative) of T or T’s spouse and precedeases T, then gift goes to issue of beneficary

*note, that the A-L statute does not save a gift to a predeceased spouse herself

Question 28

Abatement

Answer 28

The process by which certain gifts are reduced (when necessary to pay for omitted child or spouse)
Order of Abatement:
1. property not passing under the will or trust
2. Abate all trust and will beneficiares pro Rata
- except specific gifts if it would defeat the obvious intention of testator

Question 29

Exoneration

Answer 29

paying off debts associated with gifts

CA rule: no automatic exoneration, you take property subject to encumbrances