Wills Miscellaneous

Question 1

Share of heirs other than spouse

Answer 1

Descendants > parents > descendants of parents > grandparents > issue of deceased spouse.

Question 2

Posthumous birth

Answer 2

1. Child born within 300 days after death;
2. Conceived before death;
3. Takes as poshumous heir.

Question 3

Presumption of paternity (5 ways)

Answer 3

1. Born during or within 300 days of marriage;
2. Marriage + child support or asserted paternity;
3. Male lived with 0-2 and held out;
4. Officially acknowledged;
5. Court determined.

Question 4

Termination of paternity

Answer 4

1. Legally terminated;
2. Child dies before 18 and clear and convincing evidence rights could have been terminated (abandonment, desertion, abuse, fail to pay child support <18);
3. Child adopted;

Question 5

Equitable adoption

Answer 5

1. Natural parent relinquished custody in reliance upon foster parents;
2. Who fail to follow through;
3. Child may recover from foster parents;
4. Detrminental reliance.

Question 5

Adopted child’s parent-child relationship not severed with biological parents when…

Answer 5

1. Stepparent adoption; or
2. Adoption following death of natural parent.

Question 5

Stepparent adoption statute

Answer 5

1. Clear and convincing evidence would have adopted;
2. But for legal barrier.

Question 5

Simultaneous death

Answer 5

1. Clear and convincing evidence;
2. Survived by 120 hours.

Question 6

Substantial compliance doctrine (“near miss” rule)

Answer 6

1. Substantial compliance;
2. Clear and convincing evidence;
3. T intended document to be his will;

Question 6

Insane delusion

Answer 6

GIPID

1. Ground for contesting;
2. Testator’s persistent
3. Irrational belief;
4. Directly influences;
5. Invalidating affected portion.

Question 6

Contract to make a will

Answer 6

Oral valid unless violating statute of frauds.

Question 6

Slayer rule

Answer 6

1. Intentional and felonious killing;
2. Preponderance of evidence;
3. Constructive trust created as if;
4. Predeceased the decedent.

Question 6

Delusions or hallucinations

Answer 6

1. Caused devises;
2. Would not listen to reason;
3. No reasonable basis for belief that caused.

Question 6

Contracts not to revoke a will

Answer 6

1. Burden on party claiming to prove;
2. Joint or mutual will insufficient to overcome presumption of a contract.

Question 7

Prima facie validity of a will

Answer 7

1. Capacity;
2. Testamentary intent;
3. Valid execution;
4. Not revoked.

Question 8

Harmless error (CPC 6110)

Answer 8

1. Only allows errors in attestation;
2. Clear and convincing evidence;
3. T intended to be his will.

Question 9

Attested will formalities

Answer 9

1. In writing;
2. Signed by testator;;
3. Two witnesses present for signing; or
4. Acknowledgement by testator; and
5. Understanding it is a will;
6. Ws sign before testator’s death.

Question 10

Dependent relative revocation

Answer 10

1. Court can undo revocation;
2. Clear and convincing evidence;
3. Revocation of will 1 was conditional on validity of will 2; and
4. Carry out testator’s intent.

Question 11

Revival

Answer 11

1. 2nd will which wholly revokes 1st will thereafter is revoked by 3rd will or physical act;
2. Physical act requires contemporaneous or subsequent declaration that will 1 should take effect;
3. By will 3, look to terms of will.

Question 12

Incorporation by reference

Answer 12

III
1. Writing in existence;
2. Will sufficiently identifies;
3. Manifests intent to incorporate.

Question 13

Satisfaction - inter vivos satisfies gift if

Answer 13

1. Instrument provides;
2. Transferor contemporaneous writing;
3. Transferee written acknowledgement; or
4. Same as specific gift.

Question 14

Ademption (specific gifts only)

Answer 14

MISC
____________
1. Majority, specific gifts no longer in estate adeem; except when
2. Involuntary conversion (flood, fire);
3. Conservator or third party sells, transferee has rights to money;
4. Change in form (Stock splits, merger, consoidation, stock dividends)

Question 15

Abatement

Answer 15

1. Not enough assets in estate;
2. Abate in order:
3. Residuary > general non-relatives > general relatives > specific non-relatives > specific relatives.
4. Pro rata within class

Question 16

Exoneration

Answer 16

1. Gifted property subject to debt;
2. Common law in full;
3. Modern if instrument specifies exoneration or pay off specific note (“free and clear of existing mortgages”)

Question 17

Pretermitted Heir

Answer 17

1. T didn’t know about child; or
2. Mistaken about death;
3. Exception if >1 child + all to H.

Question 18

Classification of Gifts

Answer 18

Discuss in context of ademptions of specific gifts (before ademption to verify that it applies).

Question 18

Will speaks as of

Answer 18

1. Date of death;
2. not execution
3. so “my car” at death is whatever car testator owned at death.

Question 19

Applicable law

Answer 19

1. CA will respect law of other state if executed there.
2. E.g., T on vacation and executes will according to AZ law but not CA law.
3. CA will respect.

Question 20

Classification of increased gift

Answer 20

1. if specific gift of 100 shares, B will take 200 if given by
2. Stock dividend;
3. stock split;
4. merger, etc.
5. But if GENERAL devise, will only take whatever was mentioned in will