Wills and Trust Flashcards
Wills & Trust
Approach
- Whether the essay involves just Wills, just Trusts, or both, remember to treat each instrument or document separately, and in chronological order—just like you would on a Contracts or Property exam.
- Then, within an instrument, treat each item or bequest separately, and try to discern a logical flow.
a) The most basic flow, particularly in a Wills question, is to aim toward the disposition of the residue,
(1) because if a gift or bequest in an instrument otherwise fails,
(2) because of lapse or the failure of an express trust
(3) e.g., it will end up in the residuary clause of a Will. - If there is no Will, or no residuary clause in the Will, or the residuary clause itself fails, the property is distributed through intestate succession.
Wills v. Trust
Tips
- Wills is California-specific.
- Trusts” generally is not a California-specific subject, except for certain construction and interpretation issues that are applied the same to Wills and to Trusts.
Trust is Valid
Tip
- If not told it is a valid trust, discuss all 7 elements of a valid trust.
- Discuss each act of the trustee separately and THEN discuss which duties apply
Terms in Wills
- Testator
- Testator’s Attestation
- Dispositive Provision
- Signing the instrument
- Witness’ Attestation Clause
- Executor and successors
- Residue
- Probate
Testator
Definition
the person making the will
Testator’s Attestation
Definition
A clause of a will that identifies the testator and indicates they are competent to make a will
Dispositive Provisions
Definition
- The provisions set out how the property is to be distributed.
- The provisions include specific gifts to specific people, and then the rest is distributed through the residue or residuary clause.
Signing the instrument
Definition
The testator signs and dates the will, and then there is an attestation clause signed by the witnesses.
Witness’ Attestation Clause
Definition
Attesting to the testator’s competence to make a will.
Executor and successors
Definition
A person appointed to be responsible for the legal distribution of the estate after the testator’s death by offering the will for probate
Dispositive Provisions
Definition
- provision that set out how the property is to be distributed
- The provisions include specific gifts to specific people
Residue
Definition
- The rest is distributed through the residue or residuary clause
- What are not the specific gifts to specific people under dispositive provisions
Probate
Definition
Probate is the court process of confirming the validity of a will and accounting for all the assets, and obtaining of the approval for all acts of the executor or administrator of the estate, along with final distribution by the court of the assets of decedent’s estate.
Wills Mental Checklist
Checklist
Approach –
1. Use a mental checklist to treat Wills as if it flows chronologically.
Steps
1. Validity – Execution and Capacity;
2. Revocation;
3. Components of a Will;
4. Construction and Interpretation;
5. Intestate succession;
6. Rights of surviving spouse and children; and
7. Bars to succession
Valid Will
Tip
- If the exam states that the testator executed a valid will (using the word “valid”), there is no need to discuss either execution of the will or the capacity of the testator, since both of those issues go to the issue of validity.
- Or, if the essay gives absolutely no details about the will execution, but is largely about formation of a testamentary trust, and acts of the trustee under the trust, just focus on the trust.
Validity of Wills
Approach
(1) First analyze whether the formalities of execution have been met.
(2) If they have not been met –> if the problem involves how the witnesses signed and whether they were present at the same time to witness the testator’s signing or acknowledgment, then discuss the rule of clear and convincing evidence and apply it to the facts before deciding whether to validate or invalidate the will.
(3) Check if Testator died after January 1, 2009
(a) On past bar exams, if death occurred before January 1, 2009, just invalidate the will for lack of due execution
(b) If after January 1, 2009, Will can be executed by clear and convincing evidence to overcome “present at same time” witnessing requirement.
Note: The requirements of executing a statutory Will are precise, and variance will ordinarily invalidate the Will. The main issues you face in will execution are the validity of the testator’s signature, the order and validity of the witness’ signatures, and the effect of interested witnesses.
Foreign Wills
Foreign will is valid in California if it is executed in accordance with:
(1) California law;
(2) The law of the state where it is executed; or
(3) The law of the place of domicile or abode or where testator is a national at the time of execution or death.
Validity of Testator’s Signature
Will Execution
A will may be signed either by the testator or on the testator’s behalf by someone in his direction.
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By testator “or at his direction”
Validity of Witnesses’ signatures
Will Execution
Under the statute, the witnesses, being present at the same time, must witness either the testator’s signature, or the testator’s acknowledgment. That means the witnesses must be together when witnessing the signature or acknowledgment.
A valid acknowledgment is the testator saying to both of the witnesses, “This is my will,” or something similar.
Wills that failed to comply with witnessing requirement Deaths after January 1, 2009
Regardless of when the will was executed, if it is not executed in strict compliance with this witnessing requirement, a will may still be admitted to probate if the proponent establishes by clear and convincing evidence that at the time the testator signed the will, the testator intended the instrument to constitute his will.
Interested Witnesses
An interested witness is one who receives something under the will more than they would otherwise receive in intestacy. To the extent a witness receives something under the will more than they would otherwise receive in intestacy, there is a presumption of undue influence as to the excess. If the proponent of the will does not overcome the presumption, the witness’ disposition lapses. However, mere appointment of the witness as a trustee or executor does not make the witness an interested witness.
Holographic Will
Holographic will requires the testator’s signature and all material provisions be in the testator’s handwriting.
Valid Holographic Will
For a holographic instrument – whether it is a will or codicil – to be valid, it requires the testator’s signature and all material terms be in the testator’s writing, but there is no requirement of witnesses. The material provisions include the gift made; the naming of beneficiaries, executors, and trustees; the signature; the declaration that the instrument is will; and similar provisions. A date is not a required material provision, but if the instrument lacks a date and there is another dated will, the holographic will is deemed invalid.
Holographic Will Lacking Date
If the instrument lacks a date, and there is another, dated will, the holographic will is deemed invalid.
5 Possible Issues in Testamentary Capacity
5 possible issues in testamentary capacity:
a) General capacity
b) Undue influence
c) Insane delusion
d) Fraud
e) Mistake
General Capacity to Make a Will
Capacity to make a will is a low bar requiring the testator understand the nature of her act, the nature and extent of her assets/property, and the natural objects of her bounty. While a testator under a conservatorship or guardianship is presumed to lack capacity, that presumption can be overcome by proof of these elements.
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2. Three requirements:
a) Testator must understand the nature of the act (of making a will)
b) Testator must understand the nature and extent of their property/assets
c) Testator must understand the natural objects of their bounty (close family)
Undue Influence
A will is invalid if obtained through undue influence – mental or physical coercion that deprives the testator of her free will and substitutes her desires with another.
There are three types of undue influence analysis:
a) a presumption of undue influence (common law presumption);
b) standard undue influence; and
c) statutory undue influence (where a fiduciary, such as an attorney or caregiver, drafts or prepares the instrument and benefits from it).
Tip: You may need to discuss all three on an essay.
Common law presumption**
Undue Influence
The common law of undue influence arises that, if not rebutted, would invalidate the gift when: the beneficiary is in a confidential relationship with the testator, participates in some way in procuring the gift, and the gift is an unnatural bequest that favors the beneficiary.
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When (1) a beneficiary is in a confidential relationship to a testator, (2) participates in some way in “procuring” a gift, and (3) the gift is an “unnatural” bequest that favors the beneficiary (it is to someone other than the natural objects of the testator’s bounty), a presumption of undue influence arises which, if not rebutted, invalidates the gift.
Statutory Undue Influence
Undue Influence
When the beneficiary is an attorney, caregiver, drafter of the instrument or a person who has a fiduciary relationship with the testator and transcribes the instrument, it is presumed procured through undue influence. If the gift is to the drafter or their relative, the presumption is conclusive.
But when the caregiver beneficiary has a personal relationship with the testator and provided the caregiving service without pay, they are not deemed a caregiver for the purpose of undue influence and thus there is no presumption of undue influence.
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When the beneficiary is an attorney or caregiver, or is the person who drafts the instrument, or is in a fiduciary relationship with the testator and transcribes the instrument, it is presumed procured through undue influence. Indeed, if the gift is to the drafter of the instrument or their relative, the presumption is conclusive.
However, if the caregiver beneficiary had a personal relationship (i.e., is a relative of the testator or trustor) and provided caregiving services without pay, they are not deemed a caregiver for purposes of undue influence, and thus there is no presumption of undue influence.
caretaker, attorney, drafter or fiduciary
Standard Undue Influence**
Undue Influence
Think of Bison’s Magician grab on opponent to exert his will, effect on the fighter and the will (damage) would not happened but for influence
In the absence of the common law presumption, the challenger to the will must show that: (1) the influence was exerted on the testator; (2) the influence’s effect was to overpower the testator’s free will and mind; and (3) but for the influence, the will would not have been executed.
Challenger has a burden of proof. Factors indicate undue influence includes: (1) the testator was vulnerable to undue influence; (2) the beneficiary’s relationship with the testator gave the beneficiary the opportunity to exercise undue influence; (3) the beneficiary had the disposition to influence the testator, [and utilized actions and tactics designed to exert influence]; (4) the gift to the beneficiary was inequitable; (5) the will provisions seem unnatural.
Insane Delusion
Insane delusions that actually cause the bequest. The test is whether, “but for” the insane delusion, the specific bequest would not have been made.
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It is not general insanity, which does not invalidate a will.
It is hallucination or psychological phenomenon i.e., the delusion tells you how to divide the property
Fraud in execution
Fraud in the execution occurs where a testator is misled into executing the instrument by false representations concerning the character or content of an instrument—they are led to believe it is something other than a will.
Fraud in inducement**
Fraud in the inducement occurs where a testator is misled into executing the instrument or a particular gift by false representations concerning facts that influence his motivation. If the court determines that someone fraudulently represented the facts to the testator, any gift caused by the fraud will be denied probate.
Mistake in execution
Mistake in the execution occurs when the maker thinks it is something other than a will. Since there is no intent to make a will, it cannot be probated.
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Where there is a mistake in the execution—as to the character of the document (e.g., where the maker thinks it is something other than a will), it cannot be probated, since there is no intent to make a will.
if mistake doctrine arise, rise up DRR rule too
Mistake in inducement
Mistake in the inducement occurs on the mistaken belief in untrue facts. Historically, there has been no relief unless both the fact of the mistake and the disposition the testator would have made but for the mistake appears on the face of the instrument.
But California Supreme Court held that the unambiguous will could be reformed if clear and convincing extrinsic evidence establishes that the will contains a mistake in the testator’s actual specific intent at the time that the will was drafted.
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Where there is a mistake in the inducement (based on a mistaken belief in untrue facts), historically, there has been no relief available unless both the fact of the mistake and the disposition the testator would have made but for the mistake appears on the face of the instrument.
However, the California Supreme Court has held that an otherwise unambiguous will could be reformed if clear and convincing extrinsic evidence establishes that the will contains a mistake in the testator’s expression of intent at the time the will was drafted, and also establishes the testator’s actual specific intent at the time the will was drafted.
if mistake doctrine arise, rise up DRR rule too
Pour Over Trust
A pour over will and trust means the assets of the estate are, upon death, transferred by gift to a revocable and amendable trust, provided the trust instrument was executed at the time of the will or before, and is adequately identified in the will. If the trust is executed after the will, it is only effective under UTATA but not incorporation by reference.
Substituted Judgment -
Court-approved Execution of Will or Trust by Conservator
“Substituted judgment” is a conservator may make a will or trust, or revoke or modify a trust, on behalf of the testator who is their conservatee. Under the doctrine of substituted judgment, the probate court is empowered to make orders authorizing or requiring the conservator to take a variety of actions with respect to a conservatee’s estate plan. The court can only approve such substituted judgment after a noticed hearing, and only if the conservatee does not oppose the proposed act or lacks legal capacity, and the conservatee will be adequately provided for notwithstanding the act.
The court has discretion and flexibility in applying the doctrine of substituted judgment under the circumstances of the case, including the nature and extent of the estate, tax implications, and previous estate plans.
Conservator can make a will or trust, or revoke or modify a trust for a conservatee.
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Requires:
1. Noticed hearing
2. Conservatee does not oppose the proposed act or lacks legal capacity
3. Conservatee will be adequately provided for notwithstanding the act
Factors considered by court:
1. Nature and extent of the estate
2. Tax implications
3. Previous estate plans
4. Other relevant factors
Which Instrument Applies?
A. Revocation
B. Revival
C. Dependent Relative Revocation (DRR)
Revocation
There are three methods of revoking an instrument or a gift in an instrument:
1. By subsequent Will;
2. By physical act (cancellation tearing, blotting out, etc.), or
3. By operation of law (in CA divorce or termination of a domestic partnership revokes a will).
A will still in physical existence may be revived through publication of a subsequent codicil, but a will revoked by physical destruction cannot be so revived.
Note:
1. While a strike-out of all of a bequest is an effective revocation by cancellation, adding in a new bequest is not effective because it would not comply with the required execution formalities (unless it is all part of a holographic instrument).
2. But a strike-out of one numeral to decrease the gift (striking out a 0 from $1000 to reduce the gift to $100) is permitted.
3. One of the hardest areas, and most confusing, is when the testator seeks to rescind the revocation itself, and** whether and when to use Revival** or Dependent Relative Revocation to bring back the revoked provisions.
Revival
Revival only applies to when (1) Will 2 revokes Will 1, and then (2) Will 2 itself is revoked by physical act. Then, Will 1 is only revived if either from the circumstances of the revocation or from the testator’s contemporaneous or subsequent declarations it is evident that the testator intended Will 1 to be revived by revoking Will 2.
Only ONE Fact Pattern
Dependent Relative Revocation (DRR)
When a testator revokes part or all of a will on the mistaken belief that the new disposition, made concurrently, is valid, the court will give effect to the revoked portion if it is consistent with what the court determines was testator’s intent.
- DRR only applies in the case of a mistake. It does not apply in the case of fraud or any other flaw. It also does not apply to invalid execution of the revoking instrument, even if the testator mistakenly believed the revoking instrument was validly executed, since there is no need for DRR in that case because the revoking instrument was never valid and thus never revoked the original instrument.
- The application of DRR requires that the new disposition is ineffective—invalid—due to a mistake. If the revocation is by physical act, the mistake may be shown by extrinsic evidence, but if the revocation is by subsequent instrument, the mistake must appear on the face of the will. Extrinsic evidence is not permitted. The revocation and the making of the new disposition must be simultaneous.
Components of a Will
Tip
Issue: Where the exam mentions papers in addition to the will, one issue is whether they are part of the will.
When such additional papers are mentioned in the essay, consider and perhaps discuss four possible theories for what these papers might be:
1. a codicil;
2. integration;
3. incorporation by reference; and
4. acts of independent significance.
Codicils
A codicil modifies, amends, or revokes a prior will and must be executed with the same formalities as a will. Holographic codicils is valid if the signature and material provisions (i.e., gifts made and name of beneficiaries) are in the testator’s handwriting.
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A codicil amends a prior will and requires the same formalities as a will. It is admissible to probate by itself. To the extent the will is not changed by the codicil, it is deemed to speak as of the date of the codicil, so the unaltered remainder of the will is republished by the codicil.
Elements:
1. A codicil requires the same formalities as a will
2. It is admissible to probate by itself
3. To the extent the will is not changed by the codicil, it is deemed to speak as of the date of the codicil, so the unaltered part of the will is republished by the codicil.
Integration
The will consists of all papers or writings actually present at the time of execution that the testator intended to physically constitute her will. Intent and presence are presumed when the papers are physically connected or there is an internal sense of connectedness shown by the provisions running from one page to the next. [These elements may be shown by extrinsic evidence.]
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Element:
1. The will consists of all papers or writings actually (physically) present at the time of execution and that the testator intended to constitute her Will.
2. Intent and presence is presumed when the papers are physically connected or there is an internal sense of connectedness shown by the provisions running from one page to the next.
3. These elements ma be shown by extrinsic evidence.
Incorporation by Reference**
Incorporation by reference requires that (1) the incorporated writing be in existence as of the date of execution of the will, (2) the will shows the testator’s intent to incorporate the writing, and (3) the writing be sufficiently described in the will.
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Three requirements:
1. The incorporated writing be in existence as of the date of execution of the will,
2. The will shows the testator’s intent to incorporate the writing, and
3. The writing be sufficiently described in the Will.
Acts of Independent Significance
This doctrine permits a court to resolve ambiguities in a will by referring to certain documents or acts effectuated during the testator’s lifetime, which documents or acts were created or done for primarily non-testamentary motives. [The act or event must have a sufficient significance apart from its impact on the will or the estate.]
Non-testamentary acts used to resolve ambiguity on face of the will.
examples
Note:
1. Non-testamentary requires additional evidence.
2. Non-testamentary is not related at the time of person’s death
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* “All my paintings to the employee in my employ at the time of my death,”
* “To John Smith, all the furniture in my home at the time of my death.”
* Such provisions are ambiguous on the face of the will and thus need a resort to reference outside the will to identify the precise employee or the precise furniture.
