Wills and Estates

Question 0

What is Required to Show Undue Influence?

Answer 0

To create a prima facie case of undue influence, a plaintiff must show that

1) the testator has a Weakness that makes them susceptible;
2) the wrongdoer has Access to the testator;
3) a Wrongful act results in a gift; and
4) the gift is an Unnatural result.

A presumption of undue influence arises where there is:

1) a confidential relationship;
2) a wrongful act results in a gift; and
3) the gift is an unnatural result.

In CA, statute creates a presumption of undue influence where there is a gift to a drafter that is also in a fiduciary relationship (or spouse or blood relative of fiduciary) with the testator. Gift will lapse and become part of the residuary of he he estate. Rule will not apply if:

1) an independent attorney reviews and counsels the testator on the gift;
2) the gift is equal to or less than $5,000 in an estate of more than $100,000; or
3) the transfer is to a blood relative, spouse or cohabitant of testator/decedent.

Question 1

What Are The Requirements of a Will?

Answer 1

1) A writing;
2) signed by the Testator;
3) witnessed by two non-interested individuals;
4) that also sign the document. (WSSW)

Question 2

What Are the Bars to Succession?

Answer 2

Felonious or intentional killing of the testator;

Elder abuse by clear and convincing evidence;

Fiduciary abuse.

Question 3

When Will Descendants Be Considered Pretermitted Heirs?

Answer 3

If a will is executed prior to the birth or adoption of a child, the child is entitled to take their intestate share unless the omission is intentional as shown in the will; the testator provided for other devise to the child; or the testator planned that the other parent would take financial responsibility for one or all children.

Question 4

When Will Spouses Be Considered Pretermitted?

Answer 4

A will executed prior to marriage that omits a spouse is revoked as to that spouse. The omitted spouse will receive his intestate share unless:

1) the omission was intentional as shown in the will;
2) the testator provided for her spouse in another transfer;
3) spouse made a valid agreement waiving his rights to intestate share.

Question 5

What is the Order of Intestate Succession?

Answer 5

At common law: 1) to issue; 2) to parents; 3) to siblings; 4) to grandparents.

CA s 240: estate property divided into equal shares among the members of the closest level or line of consanguinity with living members. Deceased members of that class with issue receive an equal share, but divided among their issue.

Common Law Per stirpes: all property to first level (or line of consanguinity) with issue, who take by representation.

Question 6

What Is the Intestate Share of a Surviving Spouse?

Answer 6

All community property and quasi-community property and all of spouse’s property if no heirs, 1/2 if one child heir, and 1/3 if more than two child heirs.

Question 7

When Will a Gift Lapse?

Answer 7

If heir does not survive the testator, the gift will lapse unless the testator expresses a contrary intent.

Class gifts will go to any surviving members of the class.

Question 8

What is the California Anti-Lapse Statute?

Answer 8

The issue of a deceased heir who is a blood relative of the testator, or is a blood relative of the testator’s spouse or former spouse, will take by representation in the event of lapse, unless will provides otherwise.

If the deceased devisee is not a blood relative or does not have issue, the gift will lapse into the residuary of the estate.

Question 9

What Is A Pour-over Will?

Answer 9

Where estate property is given to the trustee of an inter-vivos private express trust, the trust property may be admitted to probate and poured into estate administration by incorporation by reference, facts of independent significance, or the uniform testator’s additions to trust act (requires that the trust was validly created before or concurrently with the will).

Question 10

What Are Facts of Independent Significance?

Answer 10

The terms of a will may be interpreted by a court based on facts that have significance independent of the will. The doctrine allows courts to fill in the blanks in a will with evidence that is trustworthy by nature of its independence.

Question 11

What Is Incorporation by Reference?

Answer 11

A writing in existence at the execution of a will; 2) the will shows an intent to incorporate the document; 3) the document is sufficiently described in the will.

Question 12

What is Integration of a Will?

Answer 12

Additional papers will become part of the will where they are 1) present at a will’s execution; and 2) the will expresses an intent to incorporate the documents.

Question 13

What is Ademption by Advancement?

Answer 13

An inter vivos gift to an heir will be deducted from the heir’s intestate share if the decedent’s intent to deduct is expressed in a written document executed by the decedent and the heir.

Occurs in situations where there is not a will.

Question 14

What is Ademption by Satisfaction?

Answer 14

An inter vivos gift to an heir that is mentioned in the will as given with the intention that it be deducted from the heir’s devise or intestate share will be deducted accordingly.

Occurs in situations where there is a will.

Question 15

What Are the Requirements of a Holographic Will?

Answer 15

A will that is signed by the testator and has provisions in her own handwriting. Extrinsic evidence will be allowed to determine the testator’s intent.

No witnesses are required to make a holographic will effective.

Question 16

What is Ademption?

Answer 16

A situation where the testator has devised property that the testator does not own at her death. The devise in this case is adeemed and the devisee takes nothing unless the testator intended a general gift to the devisee.

Question 17

What is Dependent Relative Revocation?

Answer 17

Cancels the revocation of a will where the testator revoked the will based on a mistaken belief that a subsequent will or codicil would effectuate her intent. If the 2nd instrument does not effectuate her intent, the first will is not revoked.

Question 18

How May a Will be Revoked?

Answer 18

A will can be revoked only by a subsequent will or codicil, a physical act of destruction with a simultaneous intent to revoke, or by operation of law (e.g. pretermitted spouse)

Question 19

What Are the Consequences of a Mistake in a Will?

Answer 19

Courts will not amend a will in the event of a mistake in the inducement (an act or gift given because of an erroneous belief) unless the mistake and the testator’s intent are clear on the face of the will.

Courts will allow parol evidence to determine the testator’s intent if there is a mistake in the description of a gift or beneficiary.

Question 20

What is an Insane Delusion?

Answer 20

A false belief that is a product of mental illness that affected the will. Only the part that is proven to be caused by the illness is invalid.

Question 21

When Will a No-Contest Clause Be Enforced?

Answer 21

Enforceable unless a beneficiary with reasonable cause brings a contest on grounds of forgery, revocation or invalid transfer to a person that drafted the will (statutory undue influence).

Question 22

What is the CA Lost Will Statute?

Answer 22

A lost or accidentally destroyed will can be probated if at least one witness who signed the will can testify as to the terms of the will. The witness cannot be interested or it would violate the Dead Man’s Statute.

Question 23

What is Abatement?

Answer 23

The reduction of a gift in order to satisfy the debts and claims against the estate. Order of abatement is:
Intestate property (not provided for in the will);
Residuary property;
General devises;
Demonstrative Devises;
Specific Devises.

Always look to personal property before real property for abatement.

Question 24

What is a General Devise?

Answer 24

A gift that specifies an amount of money but does not specify the source from which the gift should be derived.

Question 25

What is a Demonstrative Devise?

Answer 25

A gift of money that specifies the source from which the gift is to be derived.

Question 26

What is a Specific Devise?

Answer 26

A gift of money or property that has a specific source.

Question 27

What Are The Consequences of Having an Interested Witness Serve as a Witness to a Will?

Answer 27

To a Will will not invalidate the will, but creates a rebuttable presumption of undue influence. If the devisee rebuts the presumption, they may take.

If the interested witness is also a relative, they are entitled to their intestate share.

Question 28

What is Republication by Codicil?

Answer 28

Can validate imperfections in a previously executed will.

Question 29

What Happens In the Event of Simultaneous Death?

Answer 29

When two people die at the same time, and the time of death cannot be established, the property of each decedent is treated as if he predeceased the other.

A beneficiary who does not survive a testator by 120 hours is treated as if he predeceased the testator.

Question 30

How Are Adopted and Non-marital Children Treated Under Succession Laws?

Answer 30

Adopted children are always treated as natural child of adopting parent.

Step and Foster children are treated as adopted if it is established that they would have been adopted but for a legal barrier.

Non-marital children may inherit from mother where there is a parent child relationship by mother giving birth, or from father if father acknowledges the child, acknowledges a marriage to the mother, or by court decree of paternity.

Question 31

What Are the Requirements for Contracts About Wills?

Answer 31

A testator can contract to make certain decisions regarding her will with others. The contract must be established by one of the following: 1) provisions in will stating the material terms of the contract; 2) an express reference in the will to the contract or other extrinsic evidence; 3) a writing signed by the testator evidencing the contract; 4) clear and convincing evidence of an agreement or promise between the testator and another person for claimaint’s benefit.

Contract must be in writing or have part performance executed, and contract is always revocable.

Joint wills: wills of two or more people on one piece of paper / Mutual wills: separate wills that contain provisions for reciprocal benefits.

In CA there is no presumption that the execution of a joint or mutual will creates a contract to not revoke that will.

Question 32

What Are the Consequences of Dissolution of a Marriage After Execution of Will?

Answer 32

Will revoke a spouse’s rights under a will unless a contrary intent is indicated in the will. Remarriage will reinstate those rights.