Wills + Trust Flashcards
Abatement ‣ Will Distribution
Abatement occurs when gifts are reduced to enable the estate to pay debts and legacies that it otherwise would be unable to pay
- Reduced in order
- Property not disposed of by the will
- residuary gifts
- general gifts to nonrelatives
- general gifts to relatives
- specific gifts to nonrelatives
- specific gifts to relatives
- Gifts will be reduced to satisfy the share of an omitted child by taking pro rata from other beneficiaries
Acts of Independent Legal Significance
A will may dispose of property by reference to acts and events that have independent legal significance apart from their effect in the will.
When does Ademption apply?
Ademption applies where a specific gift devised has changed form from that identified in the will or no longer exists
- By extinction then look at T’s intent
- By satisfaction, if the gift was given to beneficiary during life
Will Distribution ‣ Bars to Succession
- No contest clause ‣ penalizes a beneficiary if he contests the instrument and will be enforced only if it is a direct contest brought without probable cause
- Killers do not take under the will or by intestacy ‣ treated as predeceased
Breach of Trust Remedies
- damages
- constructive trust
- tracing
- equitable lien
- remove trustee
- surcharge for the resulting loss
The trustee cannot offset losses
Laches for unreasonable delay in claims
Class Gift
A class gift is one that goes to a group of people who are not specifically named. When there is a gift to a class, only the members who survive the testator divide the gift.
Codicil
A codicil is an
- amendment to an existing will
- made by the testator
- to change, explain, or republish his will.
It must meet the same formalities as a will or holographic will.
What goes under the Components of a will, section?
- Integration
- Incorporation by reference
- Acts of Independent legal significance
- Codicil
- Pour-over will
Dependent Relative Revocation
Dependent relative revocation (DRR) sets aside a revocation for an original will to remain in force when the testator revokes a will on the mistaken belief
- a substantially similar second will is effective,
- but not and
- but for the mistake the testator would not have revoked the will.
- In California, DRR applies to revocation by physical act.
**if invalid first will then DRR does not apply**
**only revives most recent valid will**
What is needed for a valid will?
Execution of a Valid Will
A valid formal will requires (1) a testator with capacity and (2) present testamentary intent (3) to sign (4) a writing (5) in the joint presence of two witnesses who understand the instrument is a will.
Note: The witnesses must acknowledge signature at the same time, but do not need to sign at the same time, just sometime during the life of the testator.
Will Distribution ‣ Exoneration
Exoneration applies when a gift of property is made that is subject to an encumbrance and the will requires that the encumbrance be paid off and the property is free and clear of the mortgage. Abatement rules apply. A specific gift of other property cannot be abated for this purpose
Holographic Will’s 5 elements
CA recognizes holographic wills, which require the testator to
- have capacity,
- intend the document be a will,
- handwrite the material provisions, and
- sign the will.
- A holographic will need not be witnessed.
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A will that does not comply with the formalities required for a valid will can qualify as a valid holographic will if the signature and material provisions are all in the testator’s handwriting.
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Additionally, If the holographic will does not have a date and there is doubt as to whether it or another will controls, the holographic will is invalid to the extent of any inconsistencies
When is a document Incorporation by reference?
A document is incorporated by reference when a will refers to a document outside of the will, if the document:
- already exist,
- referred to in the will,
- shows intent to incorporate, and
- the document is sufficiently described in the will.
Cal: Special rule for limited tangible personal property: A writing may be admitted into probate when it disposes of LTPP if the writing:
- was referred to in the will
- dated
- in testator’s handwriting or signed by T
- describes items and beneficiaries
- each item =< $5K (totally < $25k)
Integration
Papers are integrated into the will if they were present at the time of the execution of the will and the testator intended them to be part of his will are integrated into the will.
Extrinsic evidence is permitted to show intent and the presence of papers
Interested Witnesses
****Every Powerful CAR Operates From Inside VIA An Ignition****
A person who takes under a will and is a witness creates a rebuttable presumption of undue influence, which can be rebutted by clear and convincing evidence.
- Undue influence under the common law occurs when a testator is
- susceptible to influence,
- the beneficiary has the opportunity to influence,
- the resulting will is unnatural, and
- the beneficiary helped actively procure the result.
- California statutory law finds undue influence when there is
- excessive persuasion
- that causes a testator
- to act or refrain from acting that
- overcomes his free will and
- results in inequity.
- The court will consider factors such as
- Vulnerability of the victim
- influencer’s authority and
- actions of influencer
What goes in the Interstate Distribution section?
- Intestate Succession
- Per capita - generation
- Per capita - representation
- Strict per stirpes
- Children
What is an Intestate Distribution/Share?
Under interstate distribution, the spouse receives all community property and quasi-community property and a portion of the decedent’s separate property if he leaves 2 or more issues.
A child will take an interestate share if not born or known at the time of the will’s drafting/execution. Unless money is left to the parent of that child or intentionally left out.
Will Distribution ‣ Lapse/Antilapse
Lapse occurs when a gift can no longer be distributed as the will states because of death of the beneficiary.
- Predeceased beneficiary gift lapses to residue
Under California law’s Anti-Lapse statute, if a gift is made to a bllod relative of the testator, and the relation predeceases the testator, but leaves issue, the issue succeeds to the gift.
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Lapse applies when a beneficiary named in a will pre-deceases the testator. The gift is said to lapse and the bequest fails, rather than go to that beneficiary’s next-of-kin. Most states now have anti-lapse statutes.
Modification/Revocation
- majority: Settlor can modify or revoke only if right reserved
- Minority: Settlor can modify or revoke even if not reserved
- Court can modify to meet settlor’s intent for cy pres
Once created a valid trust requires…
- settlor’s intent - no precatory /wishful language
- identifiable trust property
- legal purpose
- ascertainable beneficiary
- Trustee
- Court may appoint a trustee if need be
Tips About Undue influence for Exam
Types of Trust ‣ Charitable ‣ Cy Pres Doctrine
Charitable purposes and benefits society. When it becomes unlawful, impossible, or impracticable to fulfill; no alternative charity is named in the trust; and the court finds that settlor had general charitable intent - then the trust will not fail and courts will apply Cy Pres and substitute another similar charitable objective that is as close the settlor’s initial intent. If Cy Pres doesn’t fulfill intent, courts will apply a resulting trust.
A Will or part of a will is revoked by:
- By Physical Act of the testator or another person in the testator’s presence and at the retator’s direction. The physical act can include being burned, torn, canceled, destroyed, etc. with the intent to revoke it.
- presumed revoked if T was the last person to have it when it was destroyed and T was competent until death
- If any duplicate is destroyed then the will executed in the duplicate is revoked
- Crossed out one of two beneficiaries portion canceled goes to residue
- a Subsequent Will, which either expressly revokes OR impliedly revokes by inconsistensies
- an Operation of Law to accommodate an unintentionally omitted spouse, child or subsequent domestic partner OR to remove all devises to a previous spouse/partner after dissolution or annulment
- will receive an intestate share UNLESS
- intentionally omitted
- otherwise provided for outside will with the intent to do so in lieu of the will
- spouse waived their right to their share within an agreement
- Child’s other parent takes most
- will receive an intestate share UNLESS
- Dependent Relative Revocation (DDR). Courts will apply the doctrine of dependent relative revocation where the testator revokes his will on the mistaken belief that a substancially similar second will or codicil would be effective, but it is not effective at death. The courts will disregard the revocation made by the subsequent will and allow the first to take effect
