Wills & Trusts Flashcards
Revocation By Subsequent Instrument
A Testator may revoke a will anytime prior to death. A will can be revoked by executing a later will or codicil that partly or completely revokes the prior will. The revocation can be express or implied by the terms of the subsequent instrument.
Will Formation (Capacity + Intent)
- 18 years of age or older; understands the proeprty you are giving away; understands the beneficiaries; understands you are making a testamentary instrument
Insane Delusion: (1) false thought; (2) result of sick mind; (3) not a scintilla of evidence to support it (CA), no reasonable person would believe (other j(x); and (4) affected the will
Fraud: (1) false statement; (2) scienter; (3) induce reliance; (4) caused reliance; and (5) justifiable reliance
* Fraud in Execution: Fraud to execute agreement -> agreement void
* Fraud in Inducement: Inducement of certain terms -> terms struck
* Fraud in Revocation: Constructive Trust -> goes to beneficiaries
Undue Influence:
* Prima Facie case: (1) susceptibility; (2) opportunity; (3) active particpation; and (4) unnatural result
* Presumption: (1) Confidential Relationship; (2) active participation; and (3) unnatural result
* Statutory: (1) Drafter or their family takes under the will; (2) transcriber with fiduciary duty takes under the will; or (3) care taker takes under the will during or w/in 90 days of care
Mistake
Formal Will
SWIC - 2
A valid formal will requires a testator with capacity and presetn testamentary intent to sign a writing in the presence of two witnesses.
1) Capacity
2) Intent
3) Writing
4) Signed
5) 2 Witnesses
Substantial Compliance: For wills that do not meet proper formalities, so long as there is evidence that the T’s intent was for this document ot be their will and they substantially complied with the formalities, it will be deemed valid.
Holographic Will
A
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.
No witnesses are required.
Will Revocation
Operation of Law:
* Ex-Spouse devises are removed and go to residue
* Omitted Spouse/Child get intestate share if the relationship occured after the execution of the will unless: (1) they were intentionally omitted; (2) they were provided for through another means outside the will; or (3)(a) (for spouse) if they waived the right; OR (3)(b) (for child) if the parents had other kids at the time of execution AND the surviving spouse was left the bulk of the estate
Destruction
* A will can be revoked by physical act of T or T’s agent if T is there and directs agent. Can be accomplished by burning, tearing, cross-out, destruction, additional language AND intent to revoke.
* Duplicate’s that were executed are also presumed revoked if one of the duplicates is destroyed.
* Cancellation: Crossing out a gift revokes it, goes to residuary
* Interlineations: Must satisfy will formalities. Cannot raise amount of gift but can lower. If raised, which is invalid, can use DDR
Subsequent Instrument: Can revoke a will through express or implied language.
Dependent Relative Revocation: If mistake, revocation is disregarded and original meaning is revived. Requires that: (1) T revokes will in mistaken belief that what they are doing is valid or that substantially identical will or codicil effectuatues T’s intent.
* If second will invalid because of fraud or execution, then revocation of first is invalid and will #1 was never revoked.
Challenges To Capacity
Mental Disorder (Insane Delusion)
Mental Incapacity
Mental Capacity
An individual is not mentally competent to make a vill if at the time the will was made he is unable to:
(1) understand the nature of the testamentary act;
(2) understand the nature and situation of his property;
(4) remember and understand familiar relationships
Omitted Child/Spouse
Omitted Child
A child who is omitted from the trust can force intestate share if can demonstrate:
1. The child is **born or adopted after the trust **is created; OR
2. The settlor mistakenly believed the child was dead, or **did not know **the child existed;
3. The child is unintentionally omitted from the trust.
A share will not be forced if:
1. If the child has been provided for outside of the trust; or
2. If the settlor had other children at the time the trust was executed and left substantially all of his estate to the omitted child’s parent.
Omitted Spouse
When a marriage or domestic partnership is formed after the execution of testator’s will and spouse is not mentioned in the will, the omitted spouse is entitled to an intestate share unless:
1. The omission was intentional;
2. The spounse was given property outside fo the will in lieu of a disposition in the will;
3. The spouse is party to a valid contract waiving her right to a share of the estate;
4. The spouse was a care custodian who married the testator within 90 days of providing services to teh dependent spounse and that spouse died less than 6 months after marriage.
Intestate Share - Intestate share is determined by looking at what would have happened if the testator died intestate. Thus, basically use the regular formula for looking at spouse and kids. If no spouse, look at how many kids there are and they generally divide equally.
To determine abatement, look at how much the omitted kid gets. Then look at what percent the abated people got from the total. For example, if A and B, with no surviving spouse, each get 50% of 300k and C is an omitted child. C will get $100k (300k/3). Thus, because A and B originally got 50% of the 300k, they need to fund 50% of C’s $100k. Thus, they each pay $50k and they all get $100k.
Lapse Rule
Traditionally, when a beneficiary predeceases the testator, the gift to the beneficiary lapsed and fell into the residue.
Anti-Lapse Rule
Modernly and in California, when a beneficiary predeceases the testator, the issue of the beneficiary takes his place unless a contrary intention appears on the will.
Ademption
Ademption occurs when a testator devised a specific property to a specific person under his will, but that property is no longer a part of the estate at death. The general rule is that the gift is adeemed and fails.
Holographic Codicil
SWIC
A codicil is a supplement to a will that alters, amends, or modifies the will rather than replacing it. California recognizes holographic codicils if:
1) The testator ** signed** the will
2) It is in writing **
3) The testator intended** it to modify the will
4) Had capacity
Will Formation (Components)
Integration: Think anything stapled to the paper. Must be: (1) present at time of will; (2) T’s intent; and (3) can be shown with extrinsic evidence.
Incorporation by Reference: Think other documents or if subsequent instrument references previous. Must be: (1) in existence at time of will; will shows T’s intent; and (3) sufficiently described
Acts of Independent Legal Signifigance: Think grants to employees working at company at time of testator’s death. Seperate from effect in will
Codicil: amendment to existing will made to change, explain, or republish will. Must meet regular will formalities
* Revocation of codicil leaves underlying will intact, revocation of will terminates codicils
* Valid codicil acts are republication of will, think for omitted spouse/child issues
Pour-Over Will: Will that identifies a trust created by T that can “pour over” probate assets and avoid probate. Needs to be: (1) identified in will; (2) terms set forth in instrument other than the will; and (3) trust was executed concurrently or before the will.
Will Revival
If will is revoked by physical act or subsequent will, and then the subsequent will is revoked, the first will is only revived IF the testator intends for it to be revived.
Distrbution (Ademption, Abatement, Exoneration)
Classification: From first to be abated to last, you go:
* Residuary Gifts
* General Gifts (Non-relative -> Relative)
* Demonstrative Gift (Non-relative -> Relative): General gift from particular property or fund from which gift is made
* Specific Gifts
Argue both ways if unclear if gift is specific or general! (Say house with no address).
Ademption: Specific Gift has changed form
* Extinction: specific gift is not part of estate at T’s death, look at T’s intent to determine whether gift adeems
* Can receive the changed form if gift of: securities; conservator sold property; or eminent domain.
- Satisfaction: testator’s will provides for deduction of the lifetime gift
Abatement: Gifts are reduced to enable the estate to pay all debts and legacies, goes in above order.
* If for intestate share, the math essentially looks what people would have gotten prior to the share. You then take that percentage, multiply it what the intestate share is, and then subtract that amount from what they were previously getting.
Exoneration: Applies to gifts that have encumbrances, estate will pay off with other assets so devisee can take free and clear. NOT AUTOMATIC IN CA, need to specify
