Wills Flashcards
Wills - Choice of Law
CA law validates wills not made in CA if executed in accordance with 1) CA law, 2) law of the state where executed, or 3) law of place of T’s domicile at execution. Here, (always look to bring back to CA law)
Attested Wills
A formal attested will must be 1) in writing, 2) signed by the testator (or by another person in T’s presence and a T’s direction or by a conservator), 3) with acknowledgment of T’s signing by the joint presence of two witnesses, and 4) the W’s must understand it is a will and sign the will within a reasonable time after witnessing. Here,
Attested Will - CA Clear and Convincing Standard (2009)
If T died after 2009, and if the elements of a formal attested will are NOT met, the court may still admit the will into probate if by clear and convincing evidence it can be shown the T signed the will and intended it to be his will. Here,
Attested Will - Interested Witnesses
Under CA law, if one of the two witnesses is a beneficiary of the will (interested witness), the will is valid, but it creates a presumption that the interested witness procured the gift by duress, fraud, or undue influence. Thus, if the W fails to rebut this presumption, W’s gift will fail and the W will take only his intestate share. Here,
Holographic Wills
A HW is a handwritten will. It is valid if all material provisions are in the T’s handwriting and it must be signed and dated by T. Material provisions include the gifts made and the names of beneficiaries. Here,
Testamentary Intent
For an alleged will to be valid, the testator must have had the intention to make the particular instrument her will. Precatory words are insufficient. Wills fail for the lack of intent if 1) T lacked capacity, 2) T suffered from an insane delusion, 3) T was a victim of fraud, or 4) T was a victim of undue influence. Here,
Testamentary Intent - Capacity
T must have capacity at the time he executed his will. Capacity is shown if T is 1) over age 18, 2) understands the nature of the act, 3) knows the approximate value of his property, 4) knows the natural objects of his bounty. This is a low bar. If T lacks capacity the entire will is invalid and property will pass intestate. Here,
Testamentary Intent - Insane Delusion
At the time of execution, T had a false belief that was the product of a sick mind, the idea was unsupported by fact, and T’s delusion affected T’s will. (i.e. H thinks his wife is cheating with no basis). Only the part of the will affected by the insane delusion will be invalid and will go to the residuary devisee. Here,
Testamentary Intent - Fraud
Fraud is a representation of a material fact, known by the wrongdoer to be false, for the purpose of inducing the action/inaction and the T in fact relies on the representation. Fraud can be in the execution, inducement, or in preventing revocation:
Testamentary Intent - Fraud: Execution
If the document or signature is fraudulent the entire will is invalid and the property goes through intestate succession. Here,
Testamentary Intent - Fraud: Inducement
If the contents are obtained by fraud, only the fraudulent party will be affected and placed into a constructive trust. Here,
Testamentary Intent - Fraud: Revocation
If fraud is used to prevent T from revoking a will, the will is probated and a constructive trust is used to transfer to the intended beneficiary. Here,
Testamentary Intent - Undue Influence
In determining if T’s agency was subjugated, courts will look to 1) susceptibility, 2) opportunity, 3) wrongful act, and 4) unnatural result. Under CL, undue influence is presumed if a confidential relationship exists between T and wrongdoer (e.g. attorney-client, trustee-beneficiary, close friends). In CA, undue influence is presumed by statute if the beneficiary is the drafter, or a caretaker of T who did not have a prior relationship with T. Here,
Components of a Will
Documents outside the will may be allowed to be probated, providing certain requirements are met. Codicils are modifications to an existing will.
Components: Integration
All papers actually present at execution are integrated into the will if the T intended the papers to be a single will. Intent is shown by a physical or logical connection between the will and the papers. Here,
Components: Incorporation by Reference
Any non-integrated document may be incorporated into the will by reference if 1) the document was in existence on the date of the will, 2) clearly identified in the will, and 3) T intended the document to be in the will. Here,
Components: Facts of Independent Significance
Gaps in a will can be filled in by referring to facts or documents executed during T’s lifetime for a primarily non-testamentary motive. E.g. “I leave belongings to my church” - the beneficiary is not named but the church can be determined through parol evidence. Here,
Components: Codicil (re-analyze formation, revocation, DDR, and all 3 will component issues)
A codicil is a testamentary instrument meant to modify or revoke an earlier will and must be executed with the same formalities as a will (attested or holographic). A will is deemed republished on the date of the codicil. Here,
Components: Codicil - Interlineation
A writing between the lines revokes the altered part of the will if it is an attested will (holographic will OK). However, under the DRR the revoked portion may be re-validated if T’s intent can be determined. But if the interlineation is for a lesser amount of money, then DRR does not apply and that portion is invalid. Further, cancellation of one beneficiary does not increase the share of a co-beneficiary. Here,
Revocation
Wills can be revoked by a subsequent will, physical act, or by operation of law. Revoked may still be valid if revived, or under the doctrines of Dependent Relative Revocation.
Revocation by Subsequent Will/Codicil
A valid will may be revoked in whole or in part by the express terms of a later codicil or by implication if a subsequent will is executed. The revoking codicil or will must be executed with the same formality required for the execution of a will. Here,
Revocation by Physical Act - Cancellation
Destroying or crossing out a material part of the will by T, with the concurrent intent to revoke, will invalidate a will. Once a will is physically destroyed, it cannot be revived. Here,
Revocation by Operation of Law
An omitted child or spouse, dissolution of a marriage, and ademption are all examples of revocation by operation of law. Here,
Dependent Relative Revocation DRR
If will #1 was valid but revoked on a mistaken belief that will #2 is valid, and if will #2 is invalid but substantially similar to will #1, then will #1 reinstated. However, if will #2 gives a lesser amount to a devisee, the devisee will get nothing because giving the amount in will #1 goes against the intent of the T. Here,
Will Revival
Under CA law, the revival of the devise depends on the T’s intent, so long as that original will is still in existence. Extrinsic evidence is admissible to prove the T’s intent to revive the original will. A will may also be revived by re-execution following will formation requirements or republication by codicil. Here,
Classification of Gift
There are four types of devises or gifts and their classification affects how gifts in the will are distributed.
Specific Gift
A specific gift is a particular item, unique from all other objects in the T’s estate. “I give my car to my son” or “I give my stock”. Here,
General Gift
A general gift is a non-unique gift payable from the general assets of the estate. “I give $100 to my son” or “I give 100 shares of Apple Stock”. Here,
Demonstrative Gift
A demonstrative gift is a hybrid between specific and general because it gives a gift from a particular fund, but if that amount is insufficient, the executor can pull from general property. Here,
Residuary Gift
A residuary gift is what remains of the T’s property after paying all debts and satisfying all the specific and general gifts. “I give the residue/balance to my son”. Here,
Abatement
An order of abatement decreases gifts to named beneficiaries because funds are needed to pay an omitted spouse/child from the estate. Here,
Ademption by Extinction (specific gifts only)
Ademption by extinction occurs when a specific gift stated in the will is not party of the estate at T’s death. Generally, if this occurs the beneficiary will take nothing. Here,
In CA, courts will look to whether T intended for the gift to fail, and if he didn’t, then the beneficiary can take the present share of the item’s value. Here,
Ademption by Satisfaction (general gifts only)
Ademption by satisfaction occurs when T gives the beneficiary an inter vivos down payment on a gift. Whether the down payment qualifies as satisfaction of the gift depends on if T and B agreed to the satisfaction in writing. If T gives a unique item inter vivos, then its both an extinction and satisfaction. Here,
Lapse
Under common law, if a beneficiary does not survive T, then the gift to the beneficiary fails, meaning it falls into the residuary estate, unless the state has an anti-lapse statute. Here,
Anti-Lapse Statute
Under CA’s anti-lapse statute, tif the predeceased beneficiary is a blood relative (kindred) of T, then the issue of the predeceased beneficiary can step into his hoes and receive the gift by right of representation. However, the anti-lapse statute will not apply if the will expresses a contrary intention (i.e. if X survives me 30 days) or the devisee’s death occurred before the execution of the will. Here,
Intestate Succession: Default Order
Spouse –> Issue –> Parents –> Siblings or their issue –> Grandparents –> Grandparents’ Issue –> Step-children –> Next of Kin –> Parents of Pre-Deceased Spouse –> Escheat of the State
Intestate Succession: Distribution to Surviving Spouse
Surviving spouse takes deceased’s 1/2 of CP resulting in 100% ownership of all CP. In addition, the spouse/dp is entitled to a share of the deceased’s SP as follows: 1/2 if only 1 child, grandchild, parent, or sibling exists, 1/3 if more than 1 child or grandchild exists, and ALL of SP if nobody else exists. Here,
Intestate Succession: Per Capita w/Right of Representation
In CA, the intestate estate is distributed in equal shares among members of the first living generation level. If a member of that generation is deceased, his share of the distribution will pass to his issue per capita with representation. Here,
Intestate Succession: Per Stirpis
The result of a per stripes distribution is that the distribution will be divided at the deceased’s children’s level and be distributed equally to their heirs. Here,
Intestate Succession: Adoption
Adopted children are treated as natural children for purposes of intestacy. Adoption is presumed if 1) the relationship began when the child was a minor and 2) continued through the parties’ lifetime and 3) there is clear and convincing evidence a legal adoption would have occurred but for a legal barrier. Here,
Intestate Succession: Stepchildren
Stepchildren do not take in intestacy. Half-blood children inherit the same as full blood. Here,
Intestate Succession: Advancements
Requires writing that lifetime gift is advance payment of intestate share. Here,
Intestate Succession: Simultaneous Death
If it cannot be established by clear and convincing evidence that a person who would otherwise be an heir has survived the decedent by 120 hours, it is deemed the person predeceased the decedent for purposes of intestate succession. Here,
Intestate Succession: Omitted Spouse
A spouse omitted from premarital will receives an intestate share unless the omission was intentional as shown in the will, the spouse was provided for by a transfer outside of the will, or the spouse was made valid agreement waiving her right to share in the decedent’s estate. Here,
Intestate Succession: Omitted Child
A pretermitted child is one who is born or adopted after the execution of the will. That child will receive his intestate share UNLESS 1) omission was intentional as shown on the will, 2) T left estate to parent of omitted child, or 3) T provided for child by transfer outside of the will. Here,
Intestate Succession: Omitted Child - Unknown Child
If at the time of execution of the decedent’s testamentary instrument, the decedent fails to provide for a living child solely because the decedent is unaware of the birth of the child, the child will receive an intestate share of the decedent’s estate. Here,
Slayer Statutes
A person who feloniously and intentionally kills the decedent is not entitled to any property or benefit under the will, trust, intestacy, life insurance, joint tenancy, or otherwise. Here,
Elder Abuse
A person found liable by clear and convincing evidence of elder abuse will be treated as if he predeceased the decedent. This includes physical abuse, emotional abuse, neglect, or fiduciary abuse. Requires guilt by a preponderance of the evidence in probate court. Here,
No Contest Clause
A no-contest clause is a clause in the will threatening to disinherit a beneficiary who challenges the terms of the will. This clause is enforceable unless beneficiary, with reasonable cause, brings a contest on grounds of forgery, revocation, or invalid transfer to person who drafted the instrument. Here,
