Wills

Question 1

Test for testator capacity

Answer 1

At the time of execution, testator:

(1) is over 18
(2) understands extent of property
(3) understands natural objects of bounty (e..g, spouse, issue, parents, those who will be affected by the will)
(4) knows the nature of the act

Question 2

If at the time of execution the testator lacked capacity, then

Answer 2

Then the entire will is invalid and the property will pass through intestate succession

Question 3

Test for insane delusion

Answer 3

At the time of execution, testator:

(1) had false belief
(2) the belief was product of sick mind
(3) there was no evidence for the belief
(4) Causation: the delusion affected the testator’s will

Question 4

Consequences of finding that testator suffered insane delusion

Answer 4

Only the part of will affected is found invalid. It then goes to residuary devise, or if none, passes through intestate succession.

Question 5

Elements of general fraud; three main types of fraud

Answer 5

Knowing misrepresentation of material fact for the purpose of inducing reliance, and reliance in fact

Fraud in the execution
Fraud in the inducement
Fraud in preventing testator from revoking will

Question 6

Fraud in the execution

Answer 6

Definition: (1) someone forges testator’s signature or (2) tricks testator into signing a will without knowing it’s a will.

Consequences: entire will is invalid, and property passes through intestate succession, unless there’s a valid prior will.

Question 7

Fraud in the inducement

Answer 7

Definition: wrongdoer’s representations affect the contents of the testator’s will

Example: a son lies to the testator about some fact to induce the testator to leave the son stuff in the will

Consequences: Only that portion of the will is invalid, and court has 3 options: (1) give that to residuary devisees, (2) pass it through intestate succession, (3) decree the heir is a constructive trustee whose duty is to transfer the property to intended beneficiary

Question 8

Fraud in preventing testator from revoking

Answer 8

Definition: wrongdoer’s representations induce the testator to not revoke the will when the testator wants to

Example: a testator wants to leave everything to a hospital and the son lies to the testator saying it no longer exists

Consequences: Court will not probate the will, the court will decree the heir is a constructive trustee whose duty is to transfer the property to intended beneficiary

Question 9

Undue influence: general definition

Answer 9

Definition: the undue influencer is substituting their intent for that of the testator

Established 3 ways: prima facie case, case law presumption, statutory presumption

Question 10

Showing undue influence: prima facie case

Answer 10

Susceptibility, opportunity, motive, causation

Susceptibility: the testator has an exploitable weakness (psychological, financial, physical, etc.)

Opportunity: wrongdoer had access to testator

Motive: typically financial gain or revenge

Causation: An unnatural result which appears to be the result of undue influence (e.g., the influencer takes more than would be expected).

*Result: only the affected part is invalid. Rest goes to residuary devisees, heirs by intestate succession, or constructive trust remedy. Court decides.

Question 11

Showing undue influence: case law presumption

Answer 11

If case law presumption satisfied, shifts burden to influencer to show everything okay.

(1) A confidential relationship exists between testator and influencer
(2) The influencer was active in the creation of the will (e.g., helped write, helped select attorney)
(3) Undue benefit (e.g., the influencer takes more than would be expected)

*Result: only the affected part is invalid. Rest goes to residuary devisees, heirs by intestate succession, or constructive trust remedy. Court decides.

Question 12

Showing undue influence: statutory presumption

Answer 12

A will making a donative transfer to the following is presumptively result of undue influence:

(1) the drafter of the will
(2) a care custodian of the testator
(3) someone related to the above

*Result: the transferee is deemed to have predeceased the testator, and thus the gift lapses. The estate then goes to residuary devisees or passes by intestate succession.

Question 13

Kinds of mistake

Answer 13

(1) mistake in content
(2) mistake in execution
(3) mistake in description (ambiguity)
(4) mistake in validity of subsequent will
(5) mistake involving living children

Question 14

Mistake in content

Answer 14

Definition: testator’s will names wrong beneficiary or makes the wrong gift by accidental omission or addition

Result: Estate of Duke (2015): a will that is unambiguous on its face may be reformed to conform to testator’s intent if clear and convincing evidence shows (1) the will shows a mistake of intent at the time of drafting, and (2) what the testator’s intent actually was at the time of drafting.

Question 15

Mistake in execution

Answer 15

Definition: the testator signs the wrong document, typically two situations:

(1) testator signs a will thinking it’s something else [will is not probated because not intent of testator]
(2) mistaken signatures on reciprocal wills [court will probably reform, especially if spouses]

Question 16

Mistake in description (ambiguity)

Answer 16

Definition: nothing fits a description in the will, or multiple things fit the description

Result: Depends on latent versus patent ambiguities:

If latent: Things look fine on the will itself, and you introduce parol evidence (1) to show the ambiguity and then (2) a second time to discern intent.

If patent: The ambiguity is apparent on the face of the will itself. Modern trend in California is to use parol evidence.

Question 17

Mistake in validity of subsequent testamentary instrument

Answer 17

Dependent relative revocation

Definition: If testator has Will 1, executes Will 2, screws up on Will 2, then revokes Will 1, the court will ignore the revocation.

Rule: If testator revokes a will and is mistaken that the new will effectuates intent, then, by operation of law, the revocation of the first is deemed dependent on the validity of the second; and since the second will is invalid, the first will was never revoked.

Question 18

Mistake regarding living children (pretermission)

Answer 18

Definition: accidental omission

Example: testator writes will, had child, never updates will

Rule: a child is pretermitted if born after all testamentary instruments are executed and is not mentioned in any of them.

The child then takes intestate share of estate. But a child born before all testamentary instruments and not mentioned is not pretermitted, i.e., doesn’t get the same treatment.
*Minor exception: if the testator mistakenly thought this child was dead or non-existent, then the child gets intestate share.

Question 19

Integration of a will

Answer 19

Pieces of paper are integrated as a whole will if

(1) they’re intended to be the will, and
(2) they were all present at time of execution.

Prove by physical connection or logical connection.

Question 20

Incorporation by reference

Answer 20

A document will be included in a will by incorporation by reference if:

(1) the document exists apart from the will
(2) the document existed when the will was executed
(3) the document was clearly identified in the will
(4) the testator intends to incorporate
* If 1-3 are satisfied, court will infer 4th element.

Question 21

Facts or acts of independent significance mentioned in the will

Answer 21

These will be incorporated if: the fact has independent significance aside from just the will itself.

Question 22

Writing disposing of limited tangible personal property

Answer 22

California Probate Code Section 6132:

(1) a writing mentioned in the will
(2) the writing describes an item and beneficiary with reasonable certainty
(3) writing can be executed before or after the will
(4) the writing directs disposition of tangible personal property (an item) less than $5000 and less than $25,000 in aggregate.

Question 23

Pour-over wills

Answer 23

A will that devises some or all of an estate to a trust, but we don’t know who is the trustee, the beneficiaries, the terms, etc.

Can fill in the gaps in three ways:

(1) incorporation by reference
(2) independent significance
(3) the UTATA

Question 24

Elements for an attested will

Answer 24

(1) will in writing
(2) signed by testator (or someone for testator and in testator’s presence)
(3) in presence of two witnesses
(4) during testator’s lifetime
(5) witnesses understand they’re signing a will

If 3, 4, or 5 are not present, the will is still valid if “clear and convincing evidence” can show that the testator intended to document to be the will.

Question 25

If a witness is interested (i.e. a beneficiary)

Answer 25

The will still valid, but presumption arises that the gift was secured by wrongdoing, which the interested witness must rebut by showing no wrongdoing occurred.

If witness cannot meet this burden, they get what they would be owed by intestacy.

Question 26

Conditional wills

Answer 26

Wills that by their terms become operative on the existence of a condition.

Such a will will only be probated if the condition is satisfied.

Question 27

Definition: holographic will

Answer 27

A handwritten will

Question 28

Elements of valid holographic will

Answer 28

(1) must be signed by testator
(2) “material provisions” in testator’s handwriting (material provisions = who gets what)

If testamentary intent of the document is not apparent on the face, extrinsic evidence can establish the testamentary intent.

No date required but lack of dating can cause problems with later wills and the undated holograph will be invalid to the extent of the inconsistency.

Question 29

Choice of law rules

Answer 29

A will can be probated in California if any one is true:

(1) if the will complies with California formalities
(2) if the will complies with the formalities where it was executed
(3) if the will complies with the formalities of place where testator was domiciled at time of execution

Question 30

Codicil

Answer 30

Definition: a testamentary instrument in compliance with Statute of Wills that modifies, amends, or revokes a will.

Must be executed like a will. Harmless error will also apply. Can be holographic.

Question 31

Republication re: codicils

Answer 31

A codicil “republishes” a will, meaning it cases will to speak from date codicil was executed.

Question 32

Revoking a codicil

Answer 32

Creating will and then making codicil and then Revoking codicil creates rebuttable presumption that testator only intended to revoke only the codicil.

Creating will and then making codicil and then revoking will creates rebuttable presumption that testator is revoking will and codicil.

Question 33

Revocation by physical act

Answer 33

Elements: (1) the will is destroyed, burden, torn, cancelled, or obliterated; (2) the testator has simultaneous intent to revoke; (3) testator does it or someone at testator’s direction.

Question 34

Cancellations and interlineations

Answer 34

Cancellation = crossing out or lining through
Interlineation = writing between lines

A TYPED will with a cancellation or interlineation: a cross out will be conditional on the crossing out being operative, and thus if the cross out is not operative, then the cross out will be ignored.

But a HOLOGRAPHIC will with a cancellation or interlineation: the new thing is valid.

Cancellations to increase a gift to a beneficiary are never operative.

Question 35

Revoking a will by subsequent written instrument

Answer 35

Express: “I revoke the earlier will”
Implied: the new will totally disposes of the estate leaving nothing for the earlier will to dispose of.

Question 36

Revival of a will

Answer 36

If Will 1, then Will 2, then Will 2 is revoked, Will 1 is not automatically revived. There must be some intent to revive Will 1 (even oral declarations suffice).

Can look to later instrument to assess any intent to revive earlier instrument.

Question 37

Revocation by operation of law: omitted or pretermitted child

Answer 37

Definition: a child born/adopted after all testamentary dispositions and not mentioned in any of them.

Result: Child gets a share he would have gotten had the testator died intestate, UNLESS:

(1) the testator explicitly didn’t want anything to go to future children
(2) testator transfers everything to spouse and no children
(3) the testator provides some other form of benefit that is intended to replace the will for that child (e.g., purchasing an annuity for the child).

Question 38

Revocation by operation of law: omitted spouse

Answer 38

Definition: spouse gets share he would have gotten had the testator died intestate PLUS anything in a trust, but to take under this scheme all other gifts must be abated.

Exceptions: if any apply, spouse does not get the statutory share:

(1) decedent’s will facially does not want anything to go to spouse
(2) decedent provided for spouse in some other way with intent that would replace the will
(3) the omitted spouse signed a waiver (a voluntary relinquishment before or after marriage, written, signed, with independent legal counsel).

Question 39

Definition: specific devise

Answer 39

A gift of a particular item, something unique about it.

Testator wants the beneficiary to receive the actual thing.

Question 40

Definition: general devise

Answer 40

Benefits payed out of general assets of the estate, nothing unique about the items.

If a gift is general, no issue of ademption by extinction

Question 41

Definition: Demonstrative devise

Answer 41

A hybrid of specific and general devises: gift of particular property but can be “topped up” with general devise. E.g., leaving the person “the $1000 in my bank account,” and if the account has 800, then 200 can come from general assets.

Question 42

Definition: residuary devise

Answer 42

All other property not disposed of in the will.

Question 43

Ademption by extinction

Answer 43

Common law test: when a specific gift fails because testator did not own the thing the will mentioned. There, beneficiary gets nothing.

California test: when a specific gift fails because testator did not own the thing mentioned, then look to intent to see if testator would WANT them to get nothing if the gift failed.
Common scenarios:
(1) stocks
(2) conservator sells assets
(3) in general, try to characterize a gift as general or try to trace.

Question 44

Ademption by satisfaction

Answer 44

Definition: testator gives beneficiary a down payment on a gift while the testator is still living. Then, after testator dies, the beneficiary takes less to account for that down payment.

4 situations:

(1) the will tells us (duh)
(2) testator declares contemporaneously with the gift
(3) beneficiary acknowledges in writing
(4) the gift is a specific gift that is left to the beneficiary in the will

This scheme applies for how the beneficiary’s kids take the property if the beneficiary dies before the testator.

Question 45

Advancements

Answer 45

Definition: like a down payment on a gift but the decedent is intestate. Nearly all the same rules as ademption by satisfaction.

Question 46

Divorce versus probate definition of quasi-community property

Answer 46

Divorce QCP = all real property, wherever located

Probate QCP = real property located in California

Question 47

How much community property can testator alone devise?

Answer 47

1/2

Question 48

Widow’s election: when a testator spouse tries to devise more than 1/2 of community property

Answer 48

Spouse can take statutory share as if intestate (against the will) or take only what the will states (under the will)

Question 49

Intestate scheme

Answer 49

To issues, then parents, then issue of parents, then to grandparents, and then to issue of grandparents.

Question 50

Per Capita/Representation Problem

Answer 50

Definition: whenever issue take by intestacy, they take in manner provided by Section 240 of probate code:

• issue of same degree take per capita share, i.e., equally
• issue of more remote degree take “per capita with representation”

Question 51

Posthumous children

Answer 51

Children conceived during testator’s lifetime but born after death.

Treated as beneficiaries of will or take share as if intestate

Question 52

Lapse and Anti-Lapse

Answer 52

Lapse: if a beneficiary dies before the testator, then the gift falls into residue (unless an alternative scheme is provided for) and distributed for rules by intestacy.

Anti-lapse statute: this preempts the rule of lapse when the beneficiary was “kindred” (i.e., blood relative) of the testator. In this instance, the beneficiary’s issue step into their shoes and take the share per capita that would have gone to the beneficiary.

Question 53

Increases after testator’s death during probate

Answer 53

Specific devises: all increase goes to beneficiary

General devises: generally do not get any increase. Exception: gifts have a legal rate of interest if not distributed one year after testator’s death/

Question 54

Abatement

Answer 54

Definition: gift decrease

Happens when:
-need to pay share of omitted child/spouse, coming up with statutory requirement.

Order of abatement: abate decedent’s property not passed in the will or in a trust, then abate from all beneficiaries and revocable trust.

Question 55

An attested will is valid if:

Answer 55

(1) in writing
(2) signed by testator
(3) the signature is done/acknowledged before two witnesses
(4) 2 witnesses sign during testators lifetime
(5) witnesses understood its a will

Harmless error doctrine: if WITNESSING requirements not met, proponent can still probate the will if CLEAR AND CONVINCING EVIDENCE shows the testator intended it to be a will.

Question 56

Harmless error doctrine

Answer 56

Harmless error doctrine: if WITNESSING requirements not met, proponent can still probate the will if CLEAR AND CONVINCING EVIDENCE shows the testator intended it to be a will.

Question 57

Holographic will is valid if:

Answer 57

(1) material provisions are in testator’s handwriting

(2) testator signs the document

Question 58

Mistake in will: how to correct?

Answer 58

If party can show by clear and convincing evidence that there’s a mistake, court will reform the will. `

Question 59

Per stirpes

Answer 59

Each child gets equal share of estate, and if any die before the testator, then that child’s share goes to the child’s issue by representation.

Question 60

Are joint wills/mutual wills revocable? What about if executed pursuant to contract?

Answer 60

Yes revocable any time during life, even if executed pursuant to contract (if it’s a breach of contract, then the estate can be sued for breach of contract).

Question 61

Can a beneficiary challenge when there’s a no contest clause

Answer 61

A challenger can if the challenge was brought in good faith and with probable cause.

Question 62

“Adeem” or “ademption”

Answer 62

Failure. A gift adeems = a gift fails

Question 63

A class gift must be made to

Answer 63

A “class” and not individually named beneficiaries. E.g., “to my kids” (general) and not “to A, B, and C” (specific)

Question 64

A codicil must be executed like

Answer 64

Like a will

Question 65

If a testator-parent has multiple children and one is left out of the will but others are specifically named as beneficiaries, then what can that omitted child get?

What if no child is mentioned in the will?

Answer 65

Nothing. Does not receive intestate share. Unless can show mistake or something else.

If NO child is mentioned in the will, a presumption arises that the testator-parent wanted NO child to get anything.

Question 66

Writing “void” on a will is only sufficient to revoke if

Answer 66

There was intent + it was written on material portion of the will.