Wills & Trusts

Question 1

Wills - Formal Attested Will

Answer 1

1. Writing
2. Signed by testator or at his direction
3. Signed by 2 witnesses
4. Witnesses jointly present at signing or acknowledgement by testator
5. Witnesses understand document is will

Question 2

Wills - Interested Witnesses

Answer 2

If there is an interested witness, there is a presumption of undue influence as to gift to the witness, although it can be overcome where there are at least two other disinterested witnesses. If presumption not rebutted, interested witness gets his intestate share.

Question 3

Wills - Harmless Error Doctrine (Post-2009)

Answer 3

After 2009, where a will is not executed in strict compliance with witnessing requirements, it may nonetheless be admitted to probate if proponents establishes by clear and convincing evidence that testator intended the will to constitute his will.

Question 4

Wills - Holographic Wills

Answer 4

Holographic will is a will or codicil that is entirely or partially handwritten. To be valid, the signature and all material provisions must be the testator’s handwriting, but there is no witness requirement. It may incorporate printed boilerplate so long as material provisions (names of executors and trustees, bequests, declaration that instrument is a will, date, and signature) are in testator’s handwriting. Testamentary intent can be shown by extrinsic evidence.

Question 5

Wills - Capacity

Answer 5

1. 18 years old
2. Understand extent of property
3. Know natural objects of bounty
4. Know nature of act

Question 6

Wills - Undue Influence

Answer 6

Presumption

1. *Confidential relationship
2. Participating in procuring gift
3. Gift is unnatural

Prima Facie Case

1. Testator susceptible
2. Opportunity to influence
3. Disposition to influence
4. Gift is unnatural

Question 7

Wills - Statutory Presumptions of Fraud or Undue Influence

Answer 7

Conclusive

1. Donee drafted will,
2. Donee’s family or cohabitant drafted will, or
3. Donee is partner, shareholder, or employee of drafter

Rebuttable

1. Donee in fiduciary relationship and transcribed instrument, or
2. Donee is care custodian of dependent adult

No Presumption

1. Reviewed by independent counsel
2. Small gift in large estate

Question 8

Wills - Insane Delusion

Answer 8

1. False Belief
2. Product of Sick Mind
3. No Evidence to Support Belief
4. Delusion Affected Will

Question 9

Wills - Fraud

Answer 9

Prima Facie Case

1. Misrepresentation of material fact
2. Known to be false by wrongdoer
3. For purpose of action or inaction
4. In fact induced action or inaction

Fraud in Execution: False representations about character or content of instrument—very rare

Fraud in Inducement: False representations concerning facts that influence testator’s motivation

Question 10

Wills - Mistake

Answer 10

Mistake in Execution: Mistake as to character of document—no intent to make a will

Mistake in Inducement: No relief for mistake in inducement unless both fact of mistake and disposition testator would have made but for mistake appear on face of instrument

Question 11

Wills - Revocation

Answer 11

1. Subsequent Will (Express or Implied)
2. Physical Act (Tearing, etc.)
3. Operation of Law (Divorce, etc.)

Question 12

Wills - Revival

Answer 12

Intentionally Revokes by Physical Act

Available Where:

1. Will 2 expressly or impliedly revokes (in whole or in part) Will 1,
2. Testator subsequently revokes Will 2 by physical act, and
3. Testator intended Will 1 to be revived

Question 13

Wills - DRR (Dependent Relevant Revocation)

Answer 13

Revokes Due to Mistake

Available Where:

1. Testator revokes Will 1 based on mistake, and
2. Simultaneously makes Will 2 based on that same mistake.

Effect: The court will cancel the revocation of Will 1 if consistent with the testator’s intent.

Extrinsic Evidence: Only okay where the testator revoked Will 1 by physical act.

Question 14

Wills - Codicil

Answer 14

Testamentary instrument executed in compliance with probate code that modifies, amend or revokes a will, that requires same formalities as a will. To extent will remains unchanged as a result of codicil, it is deemed to speak as of date of codicil (republished).

Question 15

Wills - Integration

Answer 15

Consists in all papers or writings actually present at time of execution that testator intended to constitute will. Intent and presence is presumed where papers are physically connected or there is internal sense of connection shown by provisions. May be shown by extrinsic evidence.

Question 16

Wills - Incorporation by Reference

Answer 16

Requires:

1. Incorporated writing in existence as of date of execution of will
2. Will shows testator’s intent to incorporate the writing, and
3. Writing sufficiently described in will

Question 17

Wills - Acts of Independent Significance

Answer 17

Doctrine permits courts to resolve ambiguities in a will by referring to certain documents or acts effectuated during testator’s lifetime for primarily non-testamentary motives

Question 18

Wills - Writing Disposing of LImited Tangible Personal Property

Answer 18

Requires:

1. Property referred to in will, dated, and either signed or handwritten by testator
2. Describes with reasonable certainty items and recipients
3. Executed either before or after will
4. Directs disposition of tangible personal property (other than cash) valued less than $5,000 per item and not more than $25,000 in aggregate

Question 19

Wills - Specific and General Legacies

Answer 19

Specific Legacy: Gift of particular item of property distinct from all other objects in testator’s estate

General Legacy: Gift of general economic benefit (e.g., cash) payable out of general assets of estate

Stock: In most cases a general legacy, unless testator says “my shares” or stock is small, closely held corporation not traded on national exchange.

Question 20

Wills - Ademption

Answer 20

Extinction: Occurs where specific gift is no longer owned by testator. In California, gift will not adeem if

1. Securities change form
2. Conservator sells off assets
3. Eminent domain award
4. Casualty award
5. Installment sale of property

Satisfaction: Occurs where testator gives beneficiary a substitute inter vivos gift—usually applies in case of general gift. Ademption satisfied if:

1. Will itself provides for deduction
2. There is contemporaneous writing by the testator
3. Beneficiary acknowledges satisfaction in writing
4. In case of specific gift, the thing was given

Question 21

Wills - Lapse & Anti-Lapse

Answer 21

1. Kindred or surviving spouse of testator
2. Deceased beneficiary left issue

*Does Not Apply if Testator Expresses Contrary Intent

Question 22

Wills - Pretermitted Spouse or Child

Answer 22

Spouse: Spouse may dispose of their half community property by will. Spouse omitted from premarital will, however, receives her intestate share unless:

1. Omission was intentional (shown in will)
2. Spouse provided for in transfers outside of will
3. Spouse made valid agreement waiving interest in estate

Child: Parent can decline to leave anything to children. Child omitted from pre-birth will receives intestate share unless:

1. Omission was intentional (shown in will)
2. Child provided for in transfers outside of will
3. Testator had other pre-born children and left estate to the parent of omitted child

*Note: Also applies where testator believes child is dead or is unaware of birth

Question 23

Wills - Abatement

Answer 23

Generally: The process by which certain gifts are decreased if there is a need to pay an additional share (e.g., to a pretermitted child).

Debts: Where gifts are deceased, order of abatement is:

1. Intestate
2. Residue
3. General gifts to non-relatives
4. General gifts to relatives
5. Specific gifts to non-relatives
6. Specific gifts to relatives

Question 24

Wills - Bars to Succession

Answer 24

1. Beneficiary feloniously and intentionally killed decedent (found by preponderance)
2. Beneficiary committed elder abuse of decedent
3. Beneficiary brings unsuccessful will contest

*Anti-lapse does not apply

Question 25

Wills - Simultaneous Death

Answer 25

Where court cannot determine by clear and convincing evidence who survived whom, it is deemed one person did not survive the other. In intestate scenario, heir must survive decedent by 120 hours).

Question 26

Trusts - Formation

Answer 26

1. Settlor
2. Delivery
3. Trustee
4. Intent
5. Res (Trust Property)
6. Beneficiaries
7. Valid Trust Purpose

Note: Trusts of real property need writing

Question 27

Trusts - Trustee’s Duties

Answer 27

1. Duty of Delegation (Prudent Trustee in Selecting Agent)
2. Duty of Care (Care, Skill, Caution)
   
   • Care—Diligence and Efforts
   • Skill—Capabilities
   • Caution—Conservatism
3. Duty to Invest (Reasonably Prudent Person, Common Law—Each Investment vs. UPIA—Whole Portfolio)
4. Duty to Diversity (Maximize Trust Assets)
5. Duty to Earmark (Label Trust Property)
6. Duty to Segregate (No Commingling)
7. Duty to Account (Statement of Income and Expenses)
8. Duty of Loyalty (No Self-Dealing Unless Court Approval)
9. Duty to Act Impartially (Consider Income and Principal Beneficiaries)

Question 28

Trusts - Uniform Principal and Income Act (UPIA)

Answer 28

1. Principal—Stock Dividends, Capital Gain, and Payments on Principal of Trust Debt, Estate Taxes
2. Income—Cash Dividends, Money, and Ordinary Expenses (Interest, Repairs, Regular Taxes)
3. Shared Expenses—Trustee’s Compensation, Investment Fees, Expenses for Accountings and Judicial Proceed

Question 29

Trusts - Types of Trusts

Answer 29

1. Secret: Absolute gift on its face, but can show clear and convincing evidence of reliance on beneficiary’s promise to hold in trust can result in secret trustee
2. Semi-Secret: Gift is explicitly in trust with no named beneficiary—no parol evidence, gift fails and falls to residuary (or intestacy, if no residuary)
3. Testamentary: Takes effect at testator’s death
4. Inter Vivos: Transfer (third person trustee and present delivery) or Declaration (settlor is trustee)
5. Charitable: Requires purpose to benefit public and indefinite beneficiaries (benefit to public)—RAP generally inapplicable
6. Cy Pres: Settlor had general charitable intent, now impracticable—determine whether settlor intended trust to fail or would prefer similar use
7. Honorary: No ascertainable beneficiary and no substantial benefit on society (e.g., pets, cemetery plot maintenance)—not binding on trustee
8. Totten: Tentative bank account trust, beneficiary takes whatever’s left at account holder’s death
9. Spendthrift: Beneficiary cannot transfer right to payments or income/principal and creditors cannot attach (except preferred creditors (e.g., necessaries))
10. Support: Trustee must use income/principal as necessary for beneficiary’s health, support, maintenance, education—only preferred creditors can attach
11. Discretionary: Trustee has sole and absolute discretion
12. Resulting: Implied-in-fact trust that transfers property to settlor or his estate (express trust ends, no beneficiary named, charitable trust ends, trust becomes illegal, excess corpus in private trust, purchase money resulting trust, semi-secret trust)
13. Constructive: Remedy to prevent unjust enrichment, arises when trustee makes secret profit, fraud in inducement or undue influence, settlor creates secret trust, or oral real estate trust where there’s fiduciary relationship, fraud and reliance