Wills & Trusts

Question 1

Pour-Over from Will to Trust

Answer 1

A testator can make gifts by will to a revocable and amendable trust that was executed before, concurrently with, or within 60 days after execution of the will and is adequately identified in the will.

Question 2

Omitted Child

% out of exams tested: 30%

Answer 2

If a decedent unintentionally fails to provide for a child born or adopted after the execution of the decedent’s testamentary instruments, the child receives his intestate share of the decedent’s property.

• [This rule applies to a child who was alive when the testamentary instruments were executed if the testator believed the child was dead or was unaware of his birth.]
• [For purposes of calculating an omitted child’s share, the decedent’s estate includes his probate estate plus all property held in a revocable trust that becomes irrevocable on his death.]

Question 3

Intestacy Statute

% out of exams tested: 15%

Answer 3

Under the intestacy statute, if there is no surviving spouse, the entire estate passes to the decedent’s surviving issue. If the eligible surviving issue are all of the same generation, they take equally.

Question 4

Trustee Duties Owed to Beneficiaries

Answer 4

A trustee of an irrevocable trust owes her duties exclusively to the beneficiaries. These duties include the duty to administer the trust in good faith and in a prudent manner, in accordance with the terms and purposes of the trust, exercise that degree of care, skill, and caution that a reasonably prudent person would in managing her own property, and administer the trust solely in the beneficiaries’ interest and must act impartially if there is more than one beneficiary. [Once a trustee has accepted appointment, she cannot resign without the court’s permission unless authorized by the trust terms or the beneficiaries’ consent.]

Question 5

Trustee Liability to Beneficiaries

Answer 5

If a trustee commits a breach of trust, the beneficiaries may have her surcharged–i.e., sue the trustee personally for the amount necessary to restore the trust property and distribution to what they would have been without the breach.

Question 6

Will Revocation by Physical Act

Answer 6

A testator can revoke a will by burning, tearing, canceling, destroying, or obliterating it, with the intent to revoke. To revoke by tearing, the will must be torn through some material part.

Question 7

Codicil

Answer 7

A codicil is a testamentary instrument intended to modify, amend or revoke an existing will and must be executed with the same formalities as a will.

Question 8

Holographic Wills & Codicils

Answer 8

California recognizes holographic (handwritten and unattested) wills and codicils if the signature and material provisions (i.e., gifts and beneficiaries) are in the testator’s handwriting.

Question 9

Anti-Lapse Statute

% out of exams tested: 7.5%

Answer 9

Issue: Whether the anti-lapse statute applies to [a decedent’s spouse].

Rule: Lapsed gifts may be saved by anti-lapse statute, which provides that the issue of the beneficiary who predeceased the testator take in her place. California’s anti-lapse statute applies only if the predeceased beneficiary was kindred (a blood relative) of the settlor or kindred of the settlor’s surviving, deceased, or former spouse or domestic partner.

Question 10

Undue Influence

% out of exams tested: 10%

Answer 10

A will or devise therein is invalid if obtained through undue influence–mental or physical coercion that deprives the testator of his free will and substitutes the desires of another for his.

• [To establish undue influence, the contestant must establish that: (i) influence was exerted; (ii) the effect was to overpower the mind and free will of the testator; and (iii) the product was will that would not have been executed but for the influence.]

Question 11

Undue Influence:

Circumstantial Factors

% out of exams tested: 10%

Answer 11

Undue influence is usually proven by showing a number of items of circumstantial evidence that, when combined, justify the inference of undue influence. Circumstantial factors include: (i) opportunity to exert influence, (ii) the susceptibility of the testator to influence due to age or physical condition, (iii) whether the beneficiary was active in procuring the will, (iv) whether the dispositions in the will are at variance with the expressed intentions of the testator, and (v) whether the will provisions seem unnatural.

• A presumption of undue influence arises when the testator and wrongdoer are in a confidential relationship.
• A revocation procured by undue influence may be declared void.