Wills

Question 1

Attested Will

Answer 1

Shall be in writing, signed, and

Be witnessed by at least two persons

Question 2

Be witnessed by at least two persons Will

Answer 2

Must be present at same time and

Must understand instrument is testator’s will

Question 3

Interested Witnesses

Answer 3

Presumed witness procured device by 
Duress, menace, fraud, or undue influence 
Unless person made solely fiduciary
If fails, witness can rebut presumption
If fails to rebut presumption
May take under intestate succession

Question 4

CA Substantial Compliance Wills

Answer 4

Establish by clear & convincing evid

Testator intended to constitute testator’s will

Question 5

Holographic Will

Answer 5

Signature & material provisions in
Handwriting of testator if shows
Testator’s testamentary intent

Question 6

Pour Over Will

Answer 6

Regular will leaves residuary to trust
Must be in existence at time will is made
Must be identified in will and
Trust may be modified in future

Question 7

Capacity Challenge Will

Answer 7

Must be 18 years and not have mental deficiency

Mental Capacity or Insane Delusion

Question 8

Mental Capacity Will

Answer 8

Must know will was testamentary act
Extent of her property, and
Extent of beneficiaries

Question 9

Insane Delusion Will

Answer 9

Belief in things possible, but improbable 
Under surrounding circumstances
Such that no man of sound mind could 
Give them credence or a 
Belief in impossible things

Must be in reference to testator’s property or
Testator’s relatives such that
Causes particular disposition or
Prevents disposition in will

Question 10

CA Conservator Will

Answer 10

In California, conservator for individual
Who lacks testamentary capacity can
Make will if court orders it

Assumes various duties including
Fiduciary for conservatee, implying
Duty of loyalty and care

Conservatee does not necessarily lose
Right to take part in important decisions

Question 11

Undue Influence Will

Answer 11

Mental, moral, or physical exertion which
Destroyed free agency of testator by
Preventing testator from following dictates and
Accepting instead domination and influence

Question 12

Trad Test Undue Influence Will

Answer 12

Susceptibility, motive, opportunity, and causation

Question 13

CA Test Undue Influence Will

Answer 13

Vulnerability of victim
Influencer’s apparent authority
Actions or tactics used by influencer, and
Equity or inequity of result

Question 14

Fraud in Execution Will

Answer 14

Testator does not know he is signing will
Must be shown party knowingly made
False statement of material fact, with
Intent to deceive where testator relied

Question 15

Fraud In Inducement

Answer 15

Party tells testator facts that influence 
Testator in executing his will
Must be shown party knowingly made
False statement of material fact, with 
Intent to deceive where testator relied

Question 16

Fraud Presumption Will

Answer 16

Presumed when donative transfer is made to
Person who drafted it
Someone in fiduciary relationship transcribed or
Caused to be transcribed
Care custodian during services or within 90 days
Overcome by clear & convincing evid

Question 17

Exception of Fraud Presumption Will

Answer 17

Blood relative
Transfer less than $5,000
Independent attorney reviews instrument

Question 18

Integration Will

Answer 18

If present at time of execution and
Testator intended them to be part of will
Extrinsic evidence allowed to show intent

Question 19

Codicil

Answer 19

Amendment to existing will

Must meet same formalities as will

Question 20

Incorporation by Reference

Answer 20

Writing in existence when will is executed
May be incorporated by reference if
Language of will manifests intent and
Describes writing sufficiently to identify

Question 21

Facts of Independent Significance

Answer 21

May be disposed of based upon event,
Fact or act outside of will that cannot
Change disposition of will

Question 22

Lists of Personal Property (CA)

Answer 22

If will refers to separate writing of
Statement or list that disposes of tangible prop and
Writing is signed by testator,
Describes property w/ reasonable certainty and
Not over $25,000, it may be
Included in disposition of will

Question 23

Types of Revocation

Answer 23

Instrument
Physical Act
Operation of Law

Question 24

Revocation By Instrument

Answer 24

Subsequent will revokes prior will

Question 25

Revocation By Physical Act

Answer 25

Testator must perform physical act To will w/ intent to revoke and For purpose to revoke

Question 26

CA Interlineation Revocation

Answer 26

In California, writing on face of Will can constitute both altered provision and Valid new disposition if meets requirements Of holographic codicil

Question 27

Revocation Of Codicil

Answer 27

``` Leaves remaining will valid, but Revocation of will revokes will and codicils Republication Operates as republication of will As of date on codicil ```

Question 28

Revocation Of Duplicates

Answer 28

Revoked if one duplicate is destroyed, torn, Burned, cancelled, or obliterated W/ intent to revoke it

Question 29

Revocation By Operation of Law

Answer 29

To accommodate unintentionally omitted Spouse or child or domestic partner, or To remove all devices to previous Spouse/domestic partner after dissolution

Question 30

Will Can’t Be Found

Answer 30

Presumed to be revoked

Question 31

Dependent Relevant Revocation DRR

Answer 31

``` Equitable doctrine that disregards Testator’s last revocation if court Finds act of revocation based on Mistake of law or fact, and Revocation would not have occurred But for testator’s mistaken belief that Another disposition of property was valid ```

Question 32

Exception to DRR

Answer 32

If amount of second, failed gift Less than first, beneficiary takes Nothing and it goes to residuary

Question 33

Revival of Will/Trust

Answer 33

``` If second will that would have Revoked first will is thereby revoked First will stays revoked unless Evident from circumstances of revocation Testator intended first will to take effect ``` ``` If second will that would have Revoked first will is thereby revoked By third will First will stays revoked unless Terms of third will show intention For first will to take effect ```

Question 34

Extrinsic Evidence Revival

Answer 34

Permitted when revocation | Performed by physical act

Question 35

Specific Gift

Answer 35

Gift of identifiable property

Question 36

Stock Gift

Answer 36

``` If testator devises stock Owned stock at time of will, and Testator got more stock because of Stock dividend, merger, acquisition, or Drip, then devisee gets stock too ```

Question 37

General Gift

Answer 37

Gift from general assets and | Does not include specific property

Question 38

Demonstrative Gift

Answer 38

General gift that specifies property or | Particular fund gift should be made

Question 39

Residuary

Answer 39

Remainder of estate

Question 40

Ademption

Answer 40

Gives specific gift they no longer own | Beneficiary takes nothing

Question 41

Statutory Exceptions Ademption

Answer 41

If item sold, beneficiary can receive Unpaid money and note If eminent domain, then unpaid money If destroyed, unpaid insurance money If a gift, note & testator forecloses Beneficiary receives prop testator receives

Question 42

Change in Form of Gift

Answer 42

Normally, substantial change in nature of Subject matter will operate as ademption But mere nominal or formal change will not

Question 43

CA Change in Form of Gift

Answer 43

In California, testator’s intent at time Disposed of subject matter of bequest considered The courts will attempt to carry out testator’s intent In California, when change in form of gift and Evid proceeds from sale of original gift Were used to acquire new asset Court will find no ademption unless Testator intended for original gift to fail

Question 44

Satisfaction of Gift

Answer 44

Will provides for deduction of lifetime gift Testator or benny declare in writing satisfied or Same property is given during lifetime Then gift will be satisfied

Question 45

Abatement of Gift

Answer 45

``` Will gives away more than estate has Property not covered by will shall be reduced: Residuary gifts General gifts not to relatives General gifts to relatives Specific gifts not to relatives, and Specific gifts to relatives ```

Question 46

Exoneration of Gift

Answer 46

Will gives gift w/ loan attached Loan goes w/ gift unless Appears from will or circumstances Intention otherwise

Question 47

Slayer Statute Will/Trust

Answer 47

Cannot take property from When responsible for death If intentional and felonious CA: killer treated as predeceased

Question 48

Elder Abuse Will/Trust

Answer 48

CA: someone convicted of financial Exploitation, abuse, or neglect of person Under care prohibited from taking

Question 49

Lapse of Gift

Answer 49

If benny dies before testator, | Benny and heirs do not take

Question 50

Anti-Lapse of Gift

Answer 50

If benny related to testator or Testator’s spouse and Dead prior to testator, then Benny heirs take gift

Question 51

Spouse/Partner Omitted

Answer 51

``` Receive intestate share if married After will made unless Intentionally omitted on face of will Provided for outside will w/ intent in lieu Waived right in valid agreement ```

Question 52

Children Omitted

Answer 52

Receive intestate share if born or adopted After will made unless Intentionally omitted on face of will Provided for outside will w/ intent in lieu Had one or more children and devised Substantially all estate to other Parent of omitted child

Question 53

CA Children Omitted

Answer 53

Protection extends to children who Settlor believed to be deceased or Settlor unaware of birth

Question 54

No Contest Clause

Answer 54

``` Benny has 120 days from Date admitted to contest Invalid if Contesting on grounds of forgery Grounds of revocation or Grounds of fraud/undue influence Otherwise, benny contests and wins Ignored but if benny loses, then enforced ```

Question 55

Intestate SP

Answer 55

``` Surviving spouse takes dependent on Living issue, parent, siblings, or issue of siblings No lineal or parents Whole estate One child Half of estate No child but parents or issue of parents Half of estate Two or more children One third of estate ```

Question 56

Intestate Succession Order

Answer 56

``` Issue Parents Issue of parents Grandparents Issue of grandparents Issue of predeceased spouse/partner Next of kin Parents of predeceased spouse Issue of parents of predeceased spouse Escheats ```

Question 57

Per Capita Taking

Answer 57

If takers unequal degree | Start w/ first living generation

Question 58

Per Stirpes Taking

Answer 58

If takers unequal degree | Start w/ first generation

Question 59

Intestate Parent-Child

Answer 59

Exists for natural or adopted children

Question 60

Intestate Step Parents

Answer 60

Party may inherit from natural if Biological parent lived w/ child or Biological parent was married to Other biological parent and died before birth And spouse of biological parent adopts child

Question 61

Intestate Intent to Adopt

Answer 61

Relationship began during child’s minority Continued throughout lifetime and Legal barrier prevented adoption

Question 62

120 Hour Rule

Answer 62

Fails to survive by 120 hours Deemed to be predeceased for purposes of intestate succession Survival proved by clear and convincing evid

Question 63

Advancement of Gift

Answer 63

Gives benny prop during lifetime Treated as advancement against share if Decedent stated in writing advancement or Heir stated in writing advancement or Neither used “advancement” but their intent

Question 64

Calculation of Advancement of Gift

Answer 64

Total Estate = Net estate + Advancements (adv) Allocate under intestate succession Amt Heir Takes = Allocation of estate - Adv If negative: Total Estate = Net estate + (adv - excess adv) Allocation under estate (minus those who received excess) Amt Heir Takes without excess adv = alloc of estate- adv

Question 65

Disclaimer of Gift

Answer 65

``` Rejection of interest May disclaim if in writing, signed States who creator of interest is What property person is disclaiming, and Filed w/in reasonable time Cannot disclaim before interest exists ```

Question 66

Contracts Relating to Wills

Answer 66

Will states material provisions of k Express reference in will, Signed writing by decedent, or Clear and convincing evid of agreement