Wills [Highly Tested Rules]

Question 1

When does intestacy apply?

Answer 1

Intestacy applies when (1) a decedent dies without having made a will, or their will is denied probate (i.e., “total intestacy”), or (2) a decedent’s will does not dispose of all of the decedent’s property (i.e., “partial intestacy”)

Question 2

What does a decedent’s surviving spouse receive through intestacy?

Answer 2

When a decedent dies intestate, the surviving spouse will receive:
* Community Property: the decedent’s one-half share of the community property (resulting in the surviving spouse owning 100% of the community property)
* Quasi-Community Property: the decedent’s one-half share of the quasi-community property (resulting in the surviving spouse owning 100% of the quasi-community property)
* Separate Property:
* one-third of the decedent’s separate property, if the decedent is survived by (i) more than one child, (ii) one child and the descendants of one or more deceased children, or (iii) the descendants of two or more deceased children
* one-half of the decedent’s separate property, if the decedent is survived by (i) only one child, (ii) the descedendants of a deceased child, or (iii) no descendants, but a parent or the descendant of a parent (sibling)
* all of the decedent’s separate property, if the decedent leaves no surviving descendant, parent, sibling or descendant of a deceased sibling (neice or nephew)

Question 3

What does a decedent’s issue receive through intestacy?

Answer 3

When a decedent dies intestate, the decedent’s descendants (or “issue”) receive all of the intestate’s property that does not pass to the surviving spouse:
* if the descendants are of equal degree of kinship to the decedent, each receives an equal or per capita share
* if the descendants are of unequal degree of kinship to the decedent, property passes per capita with right of representation

Question 4

What is the order of intestacy distribution when the intestate is not survived by any descendants?

Answer 4

If the intestate is not survived by at least one descendant, all property not passing to the surviving spouse passes per capita in the following order:
1. parents
2. siblings, nieces and nephews
3. grandparents and cousins
4. stepchildren
5. second cousins
6. in-laws
7. escheat to state

Question 5

What does a per stirpes distribution scheme provide?

Answer 5

Under a per stirpes distribution scheme, one share of the estate passes to each child of the decedent; if a child is deceased, that child’s share passes to her descendants by representation

Question 6

What does a per capita with right of representation distribution scheme provide?

Answer 6

Under a per capital with right of representation distribution scheme, the estate is divided into equal shares at the first generational level at which there are living takers; each living person at that level takes a share, and the share of each deceased person at that level passes to his issue by right of representation

Question 7

What are the requirements of a valid will?

Answer 7

The four basic requirements of a valid will are:
1. Legal Capacity: any individual 18 years of age or older
2. Testamentary Capacity: the testator must, at the time of execution, have the mental capacity to understand:
(i) the nature of the act;
(ii) the nature and extent of the their property; AND
(iii) the persons who are the natural objects of their bounty (family members)
3. Testamentary Intent: the testator must have the present intent to make the instrument in question their will
4. Formalities: there are different formalities required for an attested will (witnessed), and a holographic will (entirely in testator’s handwriting

Question 8

What are the required formalities of a valid attested will?

Answer 8

In California, a valid ATTESTED will requires the following formalities:
1. the will must be in WRITING;
2. the will must be SIGNED by:
(i) the testator; or
(ii) a proxy, if the other person signs in the testator’s presence and at the testator’s direction
3. the testator must sign or acknowledge his will or signature in the JOINT PRESENCE of AT LEAST TWO WITNESSES;
4. the witnesses must UNDERSTAND that the instrument being witnessed is the testator’s will; AND
5. the two witnesses must sign the will DURING the testator’s lifetime

NOTE: Although not required, an attestation clause is useful in creating a rebuttable presumption that the will was duly executed

Question 9

What if one of the subscribing witnesses to a will is an interested witness?

Answer 9

If one of the subscribing witnesses to a will is an interested witness (i.e., they receive a gift under the will), the general rule is that the will is still valid, but the gift to the interested witness is presumed to be the product of duress, menace, fraud or undue influence

The interested witness can still take under the will if:
1. the interested witness REBUTS the presumption of duress, menace, fraud or undue influence;
2. there are at least two other DISINTERESTED subscribing witnesses; OR
3. the interested witness is also an heir, they may receive up to their INTESTATE share

Question 10

What is the harmless error doctrine?

Answer 10

In California, if a will is not executed in compliance with witnessing requirements, it may still be admitted to probate if the will proponent establishes by clear and convincing evidence that, at the time the testator signed the will, he intended the instrument to constitute his will

Question 11

What is a holographic will?

Answer 11

A holographic will is valid if the signature and material provisions of the will are in the testator’s own handwriting
* The testator must still have testamentary capacity and testamentary intent, but witnesses are NOT required
* The inclusion of a date is not required but helpful because provisions of a separate inconsistent will may govern to the extent of any inconsistency unless evidence establishes that the holographic will was executed later in time

Question 12

What papers or writings are integrated into a will?

Answer 12

Papers or writings are integrated into the will if:
1. they were actually present at the time of execution;
2. the testator intended such papers or writings to constitute his will

The requisite intent and physical presence is presumed to be met when there is a physical connection of the papers (e.g., stapling, paper clip) or internal consistency among the papers (e.g., sequential pagination, etc.)
* Most courts allow extrinsic evidence to be used to show the testator’s intent and presence of papers

Question 13

What is incorporation by reference?

Answer 13

A testator may incorporate an extraneous document into a will by reference, and the incorporated material is treated as if it were actually written into the will

REQUIREMENTS: A document may be incorporated by reference if:
1. the testator intends to incorporate the document;
2. the document is in existence at the time of will execution;
3. the will sufficiently identifies the document such that no other document could reasonably be referred to by the description

Question 14

When may a testator dispose of tangible personal property by a separate writing that does not meet the requirements for incorporation by reference?

Answer 14

A testator may dispose of items of tangible personal property in a separate writing that does not comply with the requirements for incorporation by reference if:
1. an unrevoked will refers to the writing;
2. the writing is dated;
3. the writing is either handwritten or signed by the testator;
4. the writing describes the items and beneficiaries with reasonable certainty;
5. the items are NOT cash or business property; AND
6. the total value of the property does not exceed $25,000, and no single item exceeds $5,000 in value

Question 15

What is a codicil?

Answer 15

A codicil is an amendment to a previously executed will, and must be executed with the same formalities

Question 16

What is republication by codicil?

Answer 16

Under the doctrine of republication by codicil, a codicil acts to “republish” the existing will EXCEPT the provisions that are inconsistent with the codicil
* The will and condicil are treated as one instrument, effective as of the date of the last codicil

NOTE: This date may be important for purposes of determining whether a child was born after will execution for purposes of the omitted child statute

Question 17

What is the doctrine of independent significance?

Answer 17

The doctrine of independent significance permits a court to refer to documents or acts effectuated during the testator’s lifetime for primarily nontestamentary motives to interpret the provisions of a will, such as identifying a beneficiary or item of property that is the subject matter of a gift
* Ex: “I leave the automobile that I own at my death to Bryan Mills.” The court will look outside the four corners of the will to ascertain such automobile

Question 18

What is a pour-over provision?

Answer 18

Under the Uniform Testamentary Additions to Trust Act, a will may “pour over” estate assets to an inter vivos trust if:
1. the trust is identified in the testator’s will;
2. the trust’s terms are set forth in a written instrument;
3. the trust instrument was executed before, concurrently with, or within 60 days after the execution of the testator’s will

NOTE: The property goes into the trust as the trust exists at the testator’s death, not as it existed at the time the will was executed; thus, trust amendments made after will execution are effective to govern the poured-over property
* If the trust is revoked between execution of the will and the testator’s death, the gift lapses

Question 19

What are basic will construction maxims?

Answer 19

1. The fact that testator left a will, especially if it has a residuary clause, indicates an intent not to die intestate
2. Among two or more contradictory provisions in a will, the last one prevails
3. A will is construed as a whole, not from isolated parts out of context
4. Courts will attempt to give effect to all words the testator included in the will

Question 20

What is patent ambiguity?

Answer 20

A patent ambiguity exists if a provision is ambiguous on its face (i.e., it fails to convey a sensible meaning)
Ex: “I leave my abisojhf to Harold. I leave 50% of the residuary to each of Adam, Betty and Charles. I leave $25,00 to Doris.”
* The court will consider extrinsic evidence to resolve the ambiguity
* BUT: Extrinsic evidence CANNOT be used to fill in blanks or supply omitted gifts

Question 21

What is latent ambiguity?

Answer 21

A latent ambiguity exists when a provision conveys a sensible meaning on its face but cannot be carried out without further clarification
Ex: “To my sister, Pat,” but the testator has a sister named Christina and a brother named Pat
* The court will consider extrinsic evidence to resolve the ambiguity

Question 22

What are devises, bequests and legacies?

Answer 22

Devise: a devise is a gift of real property
Bequest: a bequest is a gift of personal property
Legacy: a legacy is also gift of personal property, usually of money

Question 23

What is a specific devise, bequest or legacy?

Answer 23

A specific devise, bequest or legacy is a gift of a specific item of property, distinct from all other objects in the testator’s estate at the time of will execution
* Ex: “I leave my Dell computer Model 9360 with a serial number of 4527578 to Walter Bishop”

Question 24

What is a specific bequest of a general nature?

Answer 24

A specific bequest of a general nature is not distinguishable until the testator dies
* Ex: “I leave my computer to Walter Bishop”

Question 25

What is a general bequest or legacy?

Answer 25

A general bequest or legacy is a gift of a general economic benefit (usually a sum certain of money) payable out of the general assets of the estate, without specifying any particular source of payment

Question 26

What is a demonstrative legacy?

Answer 26

A demonstrative legacy is a gift of a general amount that is to be paid from a designated source or fund
* A demonstrative legacy is treated as a specific legacy to the extent the source of payment is available, and a general legacy to the extent of any shortfall remaining after such source is depleted

Question 27

What is a residuary gift?

Answer 27

A residuary gift is a gift of some portion of the residuary estate, which consists of the balance of the testator’s property at death after paying (1) debts, expenses and taxes, and (2) specific, general and demonstrative gifts

Question 28

What is ademption?

Answer 28

Ademption refers to the failure of a SPECIFIC devise or bequest because the particular item of property was not in the testator’s estate at death; when a gift is adeemed, the beneficiary of the gift takes nothing
* Most states will not inquire into the testator’s intent, or the reason the property is no longer in the estate
* In California, the testator’s intent is considered in determining whether a gift is adeemed, and, where possible, California courts will find a testator intended to make a general or demonstrative gift, rather than a specific gift

NOTE: Ademption applies ONLY to specific devises and bequests

Question 29

When does ademption not apply?

Answer 29

In California, the ademption doctrine does not apply in the following scenarios:
1. if the testator sold the gifted property and the purchaser still owes the testator money, the balance of the purchase price goes to the intended beneficiary
2. the intended beneficiary receives any condemnation, insurance or foreclosure proceeds on the gifted property
3. if the guardian or conservator of an incompetent testator sold the gifted property, the intended beneficiary receives a legacy equal to the proceeds received from the sale
4. when the gift is a specific bequest of corporate securities, the intended beneficiary is entitled to securities in another entity as a result of merger, consolidation, etc.

Question 30

What is abatement?

Answer 30

Abatement is the process of reducing testamentary gifts in cases where estate assets are not sufficient to pay all claims against the estate and satisfy all bequests, devises and legacies

Absent any contrary provisions in the will, estates abate pro rata within each class in the following order:
1. Intestate property (property not disposed of by the will)
2. Residuary property
3. General gifts to non-relatives
4. General gifts to relatives
5. Specific gifts to non-relatives
6. Specific gifts to relatives

Question 31

When does a gift lapse?

Answer 31

A gift lapses (i.e., fails) if the beneficiary predeceases the testator (or is treated as predeceasing the testator)
* When a gift lapses, it passes to the residuary estate or, if there is no residuary, via intestacy

Question 32

What does the California anti-lapse statute provide?

Answer 32

The California anti-lapse statute provides that a lapsed gift passes to the descendants of the predeceased beneficiary if:
1. the predeceased beneficiary was kindred (blood relative, adopted person, stepchild) of the testator or the testator’s surviving, deceased or former spouse; AND
2. left descendants who survived the testator

NOTE: The anti-lapse statute does NOT apply if a contrary provision appears in the will

Question 33

When and how may a will be revoked?

Answer 33

A person with testamentary capacity may revoke their will at any time before death

A will may be revoked by:
1. Operation of law
2. Subsequent instrument
3. Physical act

Question 34

When is a will revoked by dissolution of marriage?

Answer 34

Unless the will expressly provides otherwise, if the testator’s marriage is dissolved or annulled after execution of his will, any disposition of property to the former spouse under the will is revoked by operation of law
* The property prevented from passing to the former spouse because of revocation passes as if the former spouse predeceased the testator

Question 35

What does the omitted spouse statute provide?

Answer 35

Under California’s omitted spouse statute, if a decedent married AFTER execution of all his testamentary instruments (will and/or revocable trust), and the spouse survives the decedent but is NOT provided for in the instruments, the spouse may take (in addition to their share of community and quasi-community property) an INTESTATE SHARE of the decedent’s estate
* BUT: The omitted spouse’s intestate share of separate property may NOT exceed ONE-HALF of the value of the decedent’s separate property in the estate

Question 36

What are the exceptions to the omitted spouse statute?

Answer 36

The surviving spouse will NOT receive an intestate share if:
1. the spouse was intentionally omitted as indicated on the face of the will;
2. the spouse was provided for by a transfer outside the will, and the intent that such transfer be in lieu of a testamentary gift is shown by statements of the testator, the amount of the transfer or other evidence;
3. the spouse entered into a valid agreement waiving the right to a testamentary gift; OR
4. the spouse was a care custodian of the decedent who was a dependent adult, the marriage occured while the spouse was a care custodian or within 90 days after such services were last provided, and the decedent died less than 6 months after the marriage
> UNLESS: The surviving spouse proves by clear and convincing evidence that the marriage was not the product of fraud or undue influence

Question 37

What are the requirements of a valid waiver of a spouse’s right to a testamentary gift?

Answer 37

A waiver of a spouse’s right to a testamentary gift is valid if:
1. the waiver is in writing and signed by the waiving spouse;
2. the deceased spouse must have fully disclosed his financial status to the waiving spouse;
3. the waiving spouse must have been represented by independent counsel in making the waiver; AND
4. the waiver is NOT unconscionable

Question 38

What does the omitted child statute provide?

Answer 38

Under California’s omitted child statute, a testator’s child born after execution of all his testamentary instruments (will and/or revocable trust) that is not provided for in the such testamentary instruments is entitled to receive his intestate share of the estate
* The omitted child statute also applies to children born before execution of the the decedent’s testamentary instruments if they were:
(1) alive when the instruments were executed but believed to be dead; or
(2) unknown to the testator because the testator was unaware of the child’s birth

Question 39

What are the exceptions to the omitted child statute?

Answer 39

The omitted child will NOT receive an intestate share if:
1. the child was intentionally omitted as indicated on the face of the will;
2. the child was provided for by a transfer outside the will, and the intent that such transfer be in lieu of a testamentary gift is shown by statements of the testator, the amount of the transfer or other evidence; OR
3. the testator had one or more children and gifted substantially all of the estate to the other parent of the omitted child

Question 40

When is a will expressly revoked?

Answer 40

A will may be expressly revoked by a later will or codicil executed with the formalities required for a valid will
* An attested will may be revoked by a holographic will, and vice versa

Question 41

When is a will impliedly revoked?

Answer 41

A will may be revoked by implication from the terms of a subsequent will or codicil
* If the new will or codicil completely disposes of the testator’s property, the old will is completely revoked by inconsistency
* If the new will or codicil partially disposes of the testator’s property, the old will is revoked only to the extent of the inconsistency

Question 42

When does a presumption of non-revocation apply?

Answer 42

There is a presumption of non-revocation if a will is found in a “normal” location, and there are no suspicious circumstances surrounding it
* A “normal” location is in the possession of a person to whom the testator delivered the will, or among the tesator’s valuable papers in a place the testator usually kept such papers

Question 43

What is revocation by physical act?

Answer 43

A will or codicil can be revoked by burning, tearing, canceling, obliterating or destroying the instrument with contemporaneous intent to revoke it
* The testator may also direct someone else to destroy or cancel the will, but it must be done at the testator’s direction and in the testator’s presence

NOTE: Revocation by physical act also revokes ALL DUPLICATES

Question 44

What is partial revocation by physical act?

Answer 44

A will can be partially revoked by physical act by crossing out a provision, but the testator cannot increase a gift to a beneficiary without satisfying the formalities required for a valid will (however, a resulting increase in a residuary gift is fine)
* BUT: When a testator crosses out a provision of a holographic will and writes a new one, the interlineation constitutes both a revocation of the altered provision and a valid new disposition; the testator’s prior signature is adopted when the interlineation is made

Question 45

What is the effect of physical revocation on other instruments?

Answer 45

1. Physical destruction of a codicil does NOT revoke a will, even if the testator intends to revoke the will
2. Physical destruction of a will DOES revoke all codicils, unless the testator does not so intend
3. When the will and codicil are written on the same piece of paper, defacing the will portion revokes the codicil, but defacing the codicil portion does NOT revoke the will

Question 46

How may a revoked will be revived?

Answer 46

A revoked will may be revived under the following circumstances:
1. if a subsequent will is revoked by physical act, the testator’s intent to revive a prior will can be proved by extrinsic evidence
2. a revoked will may also by revived by reexecution (complying with the usual formalities) or republication by codicil

Question 47

What is dependant relative revocation?

Answer 47

Courts will apply the doctrine of dependant relative revocation when:
1. the testator revokes his first will (or partially revokes it) based on the mistaken belief that a substantially similar subsequent will or codicil would be effective;
2. the subsequent will or codicil is NOT effective at death (often because the subsequent will or codicil was also revoked); AND
3. but for the mistaken belief, the testator would not have revoked the prior will

NOTE: The more similar the provisions of the two wills, the more likely dependant relative revocation will be applied

Question 48

Who has standing to contest a will?

Answer 48

Only interested parties have standing to contest a will
* An “interested party” is a person whose interests would be adversely affected by the admission of the will to probate
* Interested parties include heirs (because they would otherwise receive an intestate share) and beneficiaries of prior wills
* Creditors, executors and testamentary trustees are NOT interested parties

Question 49

What are grounds for contesting a will?

Answer 49

The grounds for contesting the validity of a will include:
1. Defective execution
2. Revocation
3. Lack of testamentary capacity
4. Lack of testamentary intent
5. Undue influence
6. Duress
7. Fraud
8. Mistake

Question 50

What is an “insane delusion”?

Answer 50

A person with testamentary capacity may have an “insane delusion” that can invalidate an entire will or a portion thereof if there is a connection between the insane delusion and the disposition
* An “insane delusion” is a belief in facts that do not exist, and that no rational person would believe exist

Question 51

When is a will procured by undue influence?

Answer 51

A will can be invalidated on the grounds that it was procured by undue influence, if the contestant establishes that: (1) influence was exerted on the testator; (2) the effect of the influence was to overpower the mind and free will of the testator; and (3) the product of the influence was a will that would not have been executed but for the influence

Question 52

What factors are considered in determining whether a will is the product of undue influence?

Answer 52

1. opportunity to exert influence
2. susceptibility of the testator to influence due to age or physical condition
3. whether the beneficiary was active in procuring the will
4. whether the will provisions are at variance with the expressed intentions of the testator
5. whether the will provisions seem unnatural

Question 53

When does a common law rebuttable presumption of undue influence arise?

Answer 53

At common law, a presumption of undue influence, which shifts the burden of proof to the will proponent, arises when:
1. a confidential relationship existed between the testator and the beneficiary (e.g., attorney-client, doctor-patient, caretaker-dependant);
2. the beneficiary actively participated in some way in procuring, drafting or executing the will; AND
3. the will provisions are unnatural and favor the alleged influencer

A confidential relationship can also exist if the testator relies heavily on the person or reposes more than the normal amount of trust in such person

Question 54

When does a California statutory presumption of fraud or undue influence arise?

Answer 54

By California statute, fraud or undue influence is presumed when an instrument makes a donative transfer to:
1. the drafter of the instrument;
2. a person who (i) transcribed or caused the instrument to be transcribed and (2) was in a fiduciary relationship with the testator at the time;
3. a care custodian of a dependent adult testator if the instrument was executed during the provision of services or within 90 days before or afterwards;
4. a care custodian who married a dependent adult testator while providing services or within 90 days after services ceased, if the instrument was executed less than 6 months after the marriage

Question 55

When is a presumption of fraud or undue influence conclusive?

Answer 55

The presumption of fraud or undue influence is CONCLUSIVE with respect to gifts to the drafter of the instrument or the drafter’s relatives, roommates or employees