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CA Bar Exam > Wills > Flashcards

Wills Flashcards

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1
Q

Intent Requirement

A

Testator must have the intent to enter into the will at the time of execution

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2
Q

Capacity - Elements

A

At the time of execution, the testator must be

  • at least 18,
  • able to understand the extent of his property,
  • understand who may take under the will, and
  • nature of the will itself
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3
Q

Lack of Capacity - Consequence

A

The entire will is invalid, and property will be distributed through the laws of intestate succession (unless there was an earlier valid will)

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4
Q

Insane Delusion- Elements

A
  • False belief
  • that is product of a sick mind
  • no factual basis to support the belief
  • and it affects the will
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5
Q

Insane Delusion - Consequence

A

The part of the will affected by the false delusion will be stricken. Any applicable property will be distributed to the residuary devisee; if none, by intestate succession

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6
Q

Fraud - Elements

A
  • Misrepresentation of a material fact known to be false by the wrongdoer
  • Wrongdoer has the purpose of inducing action/inaction
  • Fraud causes the action/inaction
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7
Q

Fraud in the Execution - What Is It/Consequence

A

Elements: Someone forges a will or tricks T into signing the will

Consequence: Entire will is invalid, and the property passes by intestate succession

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8
Q

Fraud in the Inducement - What Is It / Consequence

A

Elements: Wronger’s misrepresentation affects the contents of the will

Consequence: Only the affected portion of the will is invalid. Court may decide to give the applicable portion to (1) the residuary devisees, (2) to heirs at law (if no residuary) or (3) to a constructive trust.

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9
Q

Fraud in Prevent Testator From Revoking Will - What is it / Consequence

A

Variation on Fraud in the Inducement. Court will not probate the will, and the property will pass by intestate succession..

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10
Q

Undue Influence - Three Types

A
  1. Prima Facie Case
  2. Case Law Presumption
  3. Statutory Presumption
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11
Q

Undue Influence - Prima Facie Case Elements & Consequence

A
  1. Susceptibility
  2. Opportunity
  3. Motive
  4. Causation

Consequence: Only the affected portion of the will will be invalidated. Court may decide to give the applicable property to residuary devisees, to heirs at law, or to constructive trust.

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12
Q

Undue Influence - Case Law Presumption - Elements & Consequence

A
  1. Confidential relationship
  2. Alleged influencer was active in procuring the will
  3. Undue benefit for influencer

Consequence. Only the affected portions of the will are invalidated. Court may distribute through the residuary, to heirs at law, or to constructive trust.

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13
Q

Undue Influence - Statutory Presumption - Elements & Consequence

A

CA presumes undue influence if there is a gift to:

  1. person who drafted/transcribed the document
  2. care custodian of a dependent adult
  3. spouse/partner/relative/etc. of either 1 or 2

Consequence: Transferee treated as predeceasing transferor, and the gift lapses

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14
Q

Mistake - Executed Will By Mistake - Consequence

A

Not probated because there was no intent when signed

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15
Q

Mistake - Reciprocal Wills - Consequence

A

Where two people each sign the other’s will. Court will reform the will so that each is treated as signed by the correct party. Wills can be probated.

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16
Q

Mistake - Latent Ambiguity - What is it / Consequence

A

Ambiguity is not apparent on the face of the will. Court will admit parol evidence to determine the testator’s intent and to cure the ambiguity.

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17
Q

Mistake - Dependent Relative Revocation - What Is It

A

Testator executes Will 1. Then he executes Will 2, revoking Will 1 in his entirety. But Will 2 was invalid and Testator didn’t realize it.

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18
Q

Mistake - Dependent Relative Revocation - Rule

A

The doctrine of dependent relative revocation permits the court to ignore an otherwise valid revocation of a will if it will defeat the testator’s purpose. Court may decide whether to respect or ignore the revocation.

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19
Q

Lost Will Rule - California

A

California permits a lost or destroyed will to be probated if at least one witness testifies to the terms of the will. Drafting lawyer is permitted to testify.

Not necessary to have testimony from the attesting witness.

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20
Q

Mistake - Living Children - Pretermission - Definition & Consequence

A

A child is pretermitted if born after the execution of all testamentary instruments, and he’s not provided for under them.

He is permitted to take his intestate share of the estate

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21
Q

Components of the Will - Integration - Definition and Proving It

A

The integrated will are those pieces of paper present at the time of execution that T intends to comprise the will.

Can be proven by physical connection (e.g., stapling) or a logical connection between the pages.

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22
Q

Components of the Will - Incorporation by Reference - Elements

A
  • Document exists separately from the will
  • It was in existence when the will was created
  • It is clearly identified in the will.
  • Testator intended for it to be incorporated
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23
Q

Components of the Will - Facts/Acts of Independent Significance - What Are They?

A

Facts of significance that are independent of the will, which may used to identify a beneficiary or gift.

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24
Q

Components of the Will - CA Probate Code 6132 for Tangible Personal Property - What Is it / Elements

A

Statute that admits a separate writing to be admitted into probate and given testamentary effect if four elements are satisfied:

  1. Writing is referred to in the will, dated and signed (or handwritten by the T)
  2. Writing describes the property and recipients with reasonable certainty
  3. Writing is executed before or after the will
  4. Writing disposes of tangible personal property worth less than $5k/item or less than 25k in the aggregate
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25
Q

Components of the Will - Pour-Over Wills - Methods of Validating Trust

A

ALWAYS DISCUSS ALL THREE

  1. Incorporation by reference (i.e., trust exists when will is executed, its clearly identified in the will, and T intends to incorporate)
  2. Facts of independent significance (i.e., trust is an instrument independent of the will)
  3. UTATA Statute: pour over provision is valid as long as the terms of the trust are set forth in a written instrument that was executed before, concurrently with, or within 60 days of the will.
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26
Q

Execution - Elements

A
  1. Writing
  2. Signed by T, or a third party at direction of T
  3. Witnessed - by two people who see the execution or attest to the T’s signature during T’s lifetime and understand what they are seeing
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27
Q

Execution - Harmless Error Rule to Witnessing Requirement

A

If a will’s execution fails the witnessing requirements, the court may probate it anyway if there is clear and convincing evidence that the will was intended to be the will and probated

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28
Q

Intersted Witness - Consequence

A

If a beneficiary witnesses the will, there is a presumption of undue influence - which can only be overcome by two other disinterested witnesses. If that’s not overcome, interested W only receives intestate share

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29
Q

Holographic Wills - Elements

A
  1. Holograph is signed by the T
  2. Material provisions are in his handwriting.
  3. Note, date is not required!
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30
Q

Conditional Will - Can it be probated?

A

Yes, if the condition is satisfied

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31
Q

Choice of Law - What options if T executes will in another state but wants to probate in CA?

A

Permitted if:

  1. Will complies with CA’s rules for execution
  2. Will complies with the formalities of the state where the will was executed
  3. Will complies with the formalities of the state where the testator was domiciled at the time the will was executed.
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32
Q

Codicil - What is it?

A

A testamentary instrument, executed in compliance with the statute of wills, which modifies, amends, or revokes a will

33
Q

Codicil - Rule of Republication & Common Fact Patterns

A

A will republishes a will as of the date it is executed.

  1. Pour Over Wills & Incorporation By Reference — republication date cures a problem with a pour over provision or incorporation by reference
  2. Pretermission — two theories that leave child out — discuss both — (a) codicil republishes the will and pretermitted child is now treated as being born and (b) codicil is itself a testamentary instrument, so now he is expressly left out
  3. Revocation — if T revokes only the codicil, presumption that he didn’t mean to revoke will. If T revokes will, presumption he intended to revoke codicil
34
Q

Revocation by Physical Act - Elements

A
  1. Will is burned, torn, cancelled, obliterated, detroyed, etc.
  2. T intends to revoke the will by his physical act
  3. T performs the act, or directs someone to perform the act for him
35
Q

Interlineation - Consequence

A

If writing is crossed out, and new terms are written in, the changes can either be:

  1. Probated completely if it is a holographic will
  2. New term can be ignored if you can prove dependent relative revocation
36
Q

Revocation by Physical Act - Duplicate Will - Consequence of Revocation

A

All wills are are revoked as a matter of law

37
Q

Mutilated Will - What is presumption if found at T’s death?

A

That Testator mutilated it

38
Q

Revival - After Revocation by Physical Act? What evidence permitted?

A

No automatic revival of an earlier will, unless the testator expressed an intent to revive. Any evidence of intent is permitted, including oral declarations.

39
Q

Revival - After Revocation by Later Will? What evidence is permitted?

A

No automatic revival of an earlier will, unless the testator expressed an intent to revive. The only permissible evidence is the new writing.

40
Q

Pretermiited Child - Exceptions to General Rule

A
  1. Child is expressly omitted in the will itself 2. Testator transfers all of his property to the estate of the omitted child
  2. Testator used other means to provide for the child outside of the will
41
Q

Omitted Spouse / Domestic Partner - What does she take under general rule?

A

Statutory share of the assets (i) held at death plus plus (ii) held in a revocable inter vivos trust. Share equals:

  1. One half of community property (with result that she takes all property, since she was already entitlted to the other half)
  2. One half of quasi community property (and again, thus gets 100%)
  3. Share of the separate property, but never greater than 50%.
42
Q

Omitted Spouse - What are exceptions to the general rule?

A
  1. Intentional omission is express in the will
  2. Testator used other means to provide for spouse
  3. Omitted spouse signs a waiver
43
Q

Omitted Spouse - What are the elements required to show a valid waiver?

A
  • writing
  • signed by the spouse before or during marriage
  • with full disclosure of T’s financial situation
  • spouse has opportunity to consult with independent counsel
44
Q

Marriage - What happens on dissolution?

A

General rule is that gift is revoked. It is reinstated if the will is never changed, and the two later remarry

45
Q

Specific Devise - Definition

A
  • Particular item
  • Closely held stock
  • Public stock, if you say “my shares of …”
46
Q

General Devise - Definition

A

-general assets of the estate

47
Q

Demonstrative Devise - Definition

A

Hybrid between specific devise and general devise. Gift from a particular fund, but there isn’t enough cash/property to satisfy.

48
Q

Specific Gift - What happens if it’s not available at probate?

A

The gift adeems. This is ademption by extinction.

Exceptions: securities that change form, conservator sells assets, and proceeds paid after testator’s death.

49
Q

General Gift - What happens if beneficiary gets a “down payment” on the gift during T’s lifetime?

A

The gift adeems. This is ademption by Satisfaction.

50
Q

General Gift - Satisfaction - How do we establish satisfaction?

A
  1. Will provides for a reduction equal to the amount of the inter vivos gift.
  2. T declares in a contemporaneous writing that the gift is in satisfaction.
  3. Beneficiary acknowledges in writing, at ANY time, that the gift was in satisfaction.
  4. It’s the same property.
51
Q

General Gift - Satisfaction - what happens if beneficiary dies before T?

A

The gift reduces any amount that is devisable to the beneficiary’s issue.

52
Q

Advancement - What is it?

A

The same as Satisfaction, but it applies to someone who dies without a will

53
Q

Advancement - how do you establish it?

A
  1. The intestate declares in a contemporaneous writing that the gift is an advancement.
  2. The heir apparent declares in a contemporaneous writing that the gift is an advancement.
54
Q

Advancement - what happens if the heir apparent dies before the intestate?

A

The gift does NOT count against the issue of the heir apparent.

55
Q

Can you enter into a contract to write a will? What is required to do so?

A

Yes. You just need
-an instrument that states the material provisions of the contract, including an express reference to the will or other instrument (e.g., trust)
-writing signed by the decedent evidencing the contract
OR prove estoppel by showing clear and convincing evidence of the agreement

56
Q

When does cause of action accrue with respect to a contract to enter into a will?

A

When the decedent dies, unless decedent is engaging in conduct that would create a fraud on the promisee.

57
Q

What is a joint and mutual will?

A

A will for two or more people in a single document, with reciprocal provisions.

58
Q

What is the unworthy heirs rule?

A

A killer that feloniously and intentionally killed the decedent is not permitted to take under the will. A conviction is conclusive proof, and in all other cases the probate court must find a preponderance of the evidence.

59
Q

What effect does killing have on a joint tenancy?

A

It severs the tenancy.

60
Q

Intestacy - What does surviving spouse / domestic partner take?

A

CP: 50%

Quasi-CP: 50%

SP: (1) 100% if: Decedent leaves no issue, parents, brother or sister, or issue of a deceased brother or sister

(2) 50% if: decedent is survived by one child, or issue of a predeceased child. Such others receive the other 50%.
(3) one-third if: decedent is survived by two or more children or issue of predeceased children. Such others receive the other two-thirds.
(4) 50% if: decedent is survived by no issue, leaves parents or parents or their issue. Such others receive the other 50%.

61
Q

Intestacy - What’s the intestate scheme, after a surviving spouse / domestic partner?

A

FOLLOW TABLE OF CONSANGUINITY

  1. Issue
  2. Parents
  3. Brothers/Sisters
  4. Grandparents
  5. Aunts/Uncles (i.e., issue of grandparents)
62
Q

When issue take by intestacy, or under a will that doesn’t specify manner of distribution, what is the distribution scheme?

A

Section 240 of the Probate Code dictates that they take by Per Capita Representation. Thus, issue of the same degree take equally and in their own right.

Issue of more remote degree take by capital with representation.

63
Q

What is the distribution scheme when a will calls for a distribution per stirpes?

A

Section 246 of the Probate Code requires a distribution at the first level of beneficiaries, even if all are deceased.

64
Q

How are adopted children treated?

A

They are always treated as the natural child of the adopting parents. Adoption severs the relationship with the biological parents, except where the adoption is by the surviving spouse / DP or after the death of either of the biological parents.

65
Q

How are stepchildren and foster children treated?

A

As natural children if (i) relationship began when child was young, (ii) relationship continued throughout the parties’ lifetime, and it is established by clear and convincing evidence that the stepparent or foster parent would have adopted, except for a legal barrier.

66
Q

How are non-marital children treated?

A

California law ignores the marital status of the parents. It only analyzes whether a parent/child relationship was formed.

67
Q

Is there any difference between how half-children and 100% biological children take?

A

No, and relatives of the half-bloods take in the same amount as relatives of the whole-bloods.

68
Q

What happens if a beneficiary dies before the testator?

A

Their gift lapses, and it will be distributed through the residuary clause or by intestate succession, as applicable.

69
Q

What is the Anti-Lapse Statute, and how does it work?

A

The statute prevents lapse, but only if the predeceased (i) was a blood relative of the testator, a blood relative of the surviving, or a deceased or former surviving spouse / domestic partner and (ii) leaves issue.

Where the statute applies, it prescribes the distribution scheme set forth in Section 240 of the Probate Code. Thus, issue of the same degree take per capita, while more remote offspring take per capita by representation.

70
Q

What happens when two people die, and it can’t be determined who died first?

A

California adopted the Uniform Simultaneous Death Act, and the state will deem that one person survived the other.

71
Q

How long does an heir need to survive the intestate in order to take through intestacy?

A

California requires that the heir survive for at least 120 hours, as demonstrated by clear and convincing evidence.

Does not apply if the result would be escheatment.

72
Q

How is property distributed if it is acquired after the will was executed?

A

It passes under the will

73
Q

How is increase acquired DURING the testator’s lifetime distributed?

A

It is distributed to the beneficiaries under the will, if owned at T’s death

74
Q

How is increased acquired AFTER the T’s life distributed?

A

Specific devise: to beneficiary

General devise: beneficiary not entitled to increase. However, general financial gifts earn interest if distributed more than a year after T’s death

75
Q

What is the rule of abatement? What is the order?

A

Rule: Gifts are decreased if a surviving spouse or omitted child is entitled to take an intestate share

Order: (1) intestate property, (2) from all beneficiaries and any inter vivos revocable trust pro rata in proportion to gifts received

76
Q

Is there an exception to the abatement rule for specific gifts? How is it demonstrated?

A

Yes, court can exempt a specific gift from abatement to avoid defeating the obvious intent of the T.

Demonstrated by language in the specific devise or general terms of the will/trust.

77
Q

Does a beneficiary take an encumbered gift subject to that encumberance?

A

Yes, in California.

78
Q

What is a gift causa mortis?

A

A gift made in contemplation of immediate death

79
Q

What are the requirements for a gift causa mortis?

A
  • Personal property

- delivery: physical, symbolic, or constructive

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