Wills (Part 2)

Question 1

CA: Reformation of an Otherwise Unambiguous Will (missing language and blank spaces in wills)

Answer 1

In CA, courts can reform or fill in the blanks of an otherwise unambiguous will if we can establish:
(1) There was an error in the expression of the will.
(2) Clear and convincing evidence of T’s intent

Question 2

Lapse

Answer 2

A gift to a beneficiary who predeceases you is lapsed (failed).

That failed gift goes into the residuary (specific or general). if there is no residuary clause, then it goes into intestacy.

Question 3

What happens when a failed residuary gift fails in whole?

Answer 3

When there is only one beneficiary for the residuary gift, and that beneficiary dies, then the failed gift goes into intestacy.

When there are multiple beneficiaries for the residuary gift, and one of them dies, then the failed gift goes to the remaining beneficiaries.

Question 4

Anti-Lapse

Answer 4

A failed (lapsed) gift can be saved by anti-lapse.

We presume that T wanted the gift to be saved for the surviving issue of the predeceased beneficiary. Rebuttable presumption.

Question 5

What are the 4 requirements for anti-lapse to apply?

Answer 5

1. Must have a lapse
2. Beneficiary must meet the appropriate degree of relationship to the testator
   (i) CA: have to be related to either the T or the T’s current, former, or predeceased spouse
3. Beneficiary has surviving issue who survive the T
4. There is no expression of contrary intent in the will

Question 6

When does anti-lapse not apply?

Answer 6

Does not apply to the current spouse of the transferor.

Question 7

If a gift fails, what are the 2 ways to save it?

Answer 7

1. Anti-Lapse
2. Class Gifts

Question 8

What is a class gift?

Answer 8

When the gift is to a class of people who are identifiable as a class.

The class is open until T dies.

Question 9

What happens when one member of the class dies before the testator?

Answer 9

The surviving members of the class divide the gift.

Question 10

What are the factors for a class gift?

Answer 10

1. Describe the beneficiaries
2. Describe the gift
3. Common characteristic
4. Overall testamentary scheme

Question 11

Can anti-lapse apply within a class gift?

Answer 11

Yes, if they. meet the appropriate degree of relationship.

Question 12

What is a void gift?

Answer 12

If a beneficiary of a gift is already dead at the time the will is executed, then the gift is void and cannot be saved.

Question 13

Can we save a void gift within a class?

Answer 13

No.

Question 14

What is the Doctrine of Ademption?

Answer 14

A failure of a specific gift because the property is not in the T’s estate at the time of death.

Question 15

What happens when the property is not in T’s estate at the time of death? (2 Views)

Answer 15

1. Identity Theory
   (i) If gift is not there, the beneficiary gets nothing
2. Intent View
   (ii) There is potential for the beneficiary to get some value in place of the missing item

Question 16

What happens when there is a change in form but not substance of the gift under the will?

Answer 16

The courts will give the changed item.

Not subject to ademption.

Ex: Change bank account to another bank is a change in form, not substance.

Question 17

What is the CA rule for Stock Splits?

Answer 17

If T owned securities at the time the will was executed, then the beneficiary will get any additional stocks resulting from T’s ownership of securities AND additional shares if it resulted from corporate action.

Treat a a specific bequest if owned at the time the will was executed.

Treat as a general bequest if not owned by T at the time the will was executed. (meaning the executor goes out and gets those shares)

Question 18

What about stocks of privately held corporations?

Answer 18

Will be presumed to be a specific bequest because, because the executor cannot just go out and get those shares. Thus, the gift would be considered adeemed.

Question 19

What is the Doctrine of Satisfaction?

Answer 19

When T makes an inter vivos gift to a beneficiary under the will, should the inter vivos transfer count against the beneficiary’s testamentary share of the estate.

Question 20

How to apply the doctrine of Satisfaction in CA

Answer 20

We presume that it is not a satisfaction UNLESS one of these exceptions apply:
(1) The will expresses that it was a satisfaction
(2) The transferor declares, in a contemporaneous writing, that the gift is a satisfaction.
(3) The transferee acknowledges in writing that the gift is a satisfaction.
(4) The property given is the same property that is subject of specific bequest to that person.

Question 21

What is the distinction between satisfaction and advancement?

Answer 21

The partial or complete satisfaction of that gift during lifetime counts against anyone (kids, etc.)

Question 22

What happens when you’re gifted stock and it appreciates in value?

Answer 22

We value the stock at the time of the transfer.

Question 23

Exoneration of Liens

Answer 23

Refers to debts or encumbrances of the property that’s given away under the terms of the will.

In CA: A specific gift passes the property subject to any mortgage, deed of trust, or other lien, without the right of exoneration. However, T can put in a provision in the will for the executor to pay off this express debt.

Question 24

Abatement

Answer 24

When the will purports to give away more than the T has.

Question 25

What is the order of abatement?

Answer 25

Shares of beneficiaries abate (get reduced) in the following order:
(1) Intestacy
(2) Residuary
(3) General (first to non-relatives then relative)
(4) Specific (first to non-relatives then to relatives)

Question 26

What is the construction of Non-Probate transfers?

Answer 26

CA applies will rules of construction, but not contract law.

Question 27

A non-probate transfer to T’s former spouse

Answer 27

Transfer fails if at the time of T’s death, former spouse is not surviving spouse.

Exception: transfer not subject to revocation; clear and convincing evidence transferor intended to preserve transfer; court order.

Question 28

Joint Bank Accounts

Answer 28

Presume that the parties to a multiple party account own in proportion to their contributions to the account, and on death, preserved right of survivorship.

Question 29

Spousal Protection Rules: 2 Primary Rights

Answer 29

1. Share Rights: focus is on the actual property rights acquired by a spouse
   - CP and elective share
2. Support Rights: for the rest of the your life but terminate at death.

Question 30

What are the 5 separate support rights?

Answer 30

1. Social security
2. Pension plans
3. Homestead exemption
4. Personal property
5. Family allowance

Question 31

Migrating Spouse (2 trypes)

Answer 31

1. Migration In
   - We will use QCP to provide protections to surviving spouse.
2. Migration Out
   - Becomes SP; Elective share now applies
   - Uniform Disposition of Property Rights at Death Act (can’t have both CP protections and elective share)

Question 32

Accidental Spouse Omission

Answer 32

We will give omitted spouse her intestate share, but we cap the SP to 1/2.

Question 33

Omitted Children: Rebutting the Presumption

Answer 33

Presumption of omitted child is rebutted IF:
The decedent’s failure to provide for the child in the decedent’s testamentary instruments was intentional and that intention appears from the testamentary instruments (subjective)

The decedent had one or more children and devised or otherwise directed the disposition of substantially all the estate to the other parent of the omitted child
OBJECTIVE inquiry

The decedent provided for the child by transfer outside of the estate passing by the decedent’s testamentary instruments and the intention that the transfer be in lieu of a provision in said instruments is show by statements of the decedent or from the amount of the transfer or by other evidence (subjective)

Question 34

CPC 21622 Unknown Children (born before will)

Answer 34

If, at the time of the execution of all of decedent’s testamentary instruments effective at the time of decedent’s death, the decedent failed to provide for a living child solely because the decedent believed the child to be dead OR was unaware of the birth of the child
Applies to ONLY two situations

THEN the child shall receive a share in the estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instruments.

NOTE: ONLY rebuttable by evidence T knew about the child