Writing Template

Question 1

Choice of Law

Answer 1

CA law validates wills not made in CA if executed in accordance with 1) CA law, 2) law of the state where executed, or 3) law of place where at the time of execution or death, the testator is domiciled, has a place of abode or is a nation. Here, (always look to bring back to CA law)

Question 2

Attested Wills

Answer 2

A formal attested will must be 1) in writing, 2) signed by the testator (or by another person in T’s presence and at T’s direction or by a conservator), 3) the T’s signing or acknowledgement of his signature of will must occur in each of the 2 witnesses presence, and 4) the W’s must sign the will within a reasonable time after witnessing. Here,

Question 3

Joint Presence of Witnesses

Answer 3

Under CA law, the T’s signing or acknowledgement of his signature or will must occur in the joint presence of at least two witnesses. Here,

Question 4

Interested Witnesses

Answer 4

At common law, a witness who was also a beneficiary in the will was deemed incompetent and the will was invalid. However, under CA law, if one or the two witnesses is an interested witness, the will is valid, but it creates a presumption that the interested witness procured the gift by duress, fraud, or undue influence. Thus, if the W fails to rebut this presumption, the gift will fail, but not the entire till, and the W will take his intestate share. Here,

Question 5

Holographic Wills

Answer 5

A HW is a handwritten will. In order for it to be valid, all material provisions MUST be in the T’s handwriting and include the T’s signature and the date. As with any will, testamentary capacity and intent are required for the will to be valid. Here,

Question 6

Intent

Answer 6

For an alleged will to be valid, the testator must have had the intention to make the particular instrument her will. Here,

Question 7

Testamentary Capacity

Answer 7

T must be able to communicate his wishes and understand the nature of the disposition he is making and its effects. To prove that a T lacked capacity at the time he executed his will, the test is the following: Did T 1) understand the nature of the act, 2) know the approximate value of his property, 3) know the natural objects of this bounty? and 4) understand the disposition he was making? Here,

Question 8

Mental Disorder

Answer 8

T is not mentally competent to make a will if T suffers a from a mental disorder with symptoms including delusion or hallucinations. (i.e. H thinks his wife is cheating) A mental disorder only overrides the portion of the will that resulted from the hallucination/delusion, while incapacity overrides the entire will. Here,

Question 9

Undue Influence - VATR

Answer 9

Undue influence means excessive persuasion that causes another person to act or refrain from acting and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered: Vulnerability
Authority
Tactics
Result

Question 10

Undue Influence - Vulnerability

Answer 10

Vulnerability of the victim includes incapacity, illness, disability, injury, age, education, isolation, etc)

Question 11

Undue Influence - Authority

Answer 11

Authority of the influencer includes status as fiduciary, family member, care provider, health care professional, legal professional, spiritual advisor, etc.

Question 12

Undue Influence - Tactics

Answer 12

Tactics or actions used by influencer. Including but not limited to:

a) Controlling necessaries of life, medications, victim’s interactions with others, access to information, sleep
b) use of affection, intimidation, or coercion
c) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes

Question 13

Undue Influence - Result

Answer 13

Equity of result includes economic consequences to victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length of the nature of the relationship.

Question 14

Components of a Will

Answer 14

The following doctrines permit documents other than the will to be probated, providing certain requirements are met:
Integration
Incorporation by Reference
Acts in Independent Significance 
Codicil

Question 15

Intergration

Answer 15

All papers actually present at execution are integrated into the will if the T intended the papers to be a single will. Intent is shown by a physical or logical connection between the will and the papers. Here,

Question 16

Incorporation by Reference

Answer 16

Any separate document may be incorporated into the will by reference if 1) the document is in existence on the date of the will, 2) clearly described in the will, and 3) proves to be the document described in the will. Here,

Question 17

Acts of Independent

Answer 17

Blanks in a will can be filled in by referring to acts or documents executed during a T’s lifetime, that have no testamentary motive. Here,

Question 18

Codicil

Answer 18

A codicil is a testamentary instrument modifying an earlier will and must be executed with the same formalities as a will (attested or holographic) A will is deemed republished on the date of the codicil. Here,

Question 19

DRR Watch

Answer 19

Watch out for a dependent relative revocation after a codicil.

Question 20

Interlineations

Answer 20

Interlineation is when the testator tries to change or add to her will by handwriting provisions in the margins. In order for an interlineation to be valid, it must meet the same standards of a holographic codicil and may NOT increase the value of a gift already in the will. Here,

Question 21

Revocation by Subsequent Will/Codicil

Answer 21

A valid will may be revoked in whole or in party by the express terms of later codicil. The revoking codicil must be executed with the same formality required for the execution of a will. Here,

Question 22

Revocation by Holographic Will/Codicil

Answer 22

A formally attested will may be revoked by a holographic will, so long as the codicil is executed with the same formalities as a holographic will. Here,

Question 23

Revocation by Physical Act - Cancellation

Answer 23

Cancellation is the act of drawing lines through a will or codicil. If the cancellation takes places on a material part of the will or at least “touches the words of the will” the will or codicil is deemed revoked by physical act. Moreover, the T’s intent to revoke must be concurrent with the physical act. Here,

Question 24

Dependent Relative Revocation DRR

Answer 24

DRR cancels a revocation based on a mistaken assumption of law or fact. Applies where T revokes his will on the mistaken belief that another disposition would be effective and but for the mistake, T would not have revoked his will. If the subsequent bequest is higher than the original amount, the court will give the devisee the original amount, however, if the sub bequest is lower, the devisee will get nothing. Here,

Question 25

Revival

Answer 25

Under common law, the revocation of a codicil would revive Al’s devise in the will. However, under CA law, the revival of the devise depends on the T’s intent, so long as that original will is still in existence. Extrinsic evidence is admissible to prove the T’s intent to revive the original will. Here,

Question 26

Specific Gift

Answer 26

A specific gift is a gift of a particular type of property distinct from all other objects in the T’s estate. Here,

Question 27

General Gift

Answer 27

A general gift is a gift of general economic benefit. Here,

Question 28

Residuary

Answer 28

A residuary gift is a gift of what remains of the T’s property after first paying all debts and satisfying all the specific and general gifts. Here,

Question 29

Abatement

Answer 29

The order of abatement is based on the classification of gifts. Here,

Question 30

Ademption by Extinction

Answer 30

Ademption occurs when a “specific” gift that is mentioned in the will is not a part of the estate at T’s death. If ademption occurs, the benny will take nothing. In CA, ademption is dependent upon the T’s intent to adeem at the time he disposes of the specific property. here,

Question 31

Ademption by Satisfaciton

Answer 31

Ademption occurs when a “specific” gift that is mentioned in the will is not a part of the estate at T’s death. Here,

Question 32

Lapse

Answer 32

Under CL, a specific gift will lapse if it is subject to a condition precedent and that condition is not satisfied. In such a case, specific gifts that lapse fall into the residuary estate, unless the state has an anti-lapse statute. Here,

Question 33

Anti-Lapse

Answer 33

Most states have anti-lapse statutes that provide for a substitute benny. CA’s anti-lapse statute applies if the devisee who predeceased the T was kindred of the T and left issue. However, the anti-lapse statute will not apply if the will expresses a contrary intention (i.e. if X survives me 30 days) or the devisee’s death occurred before the execution. Here,

Question 34

Per Capita w/right of Representation

Answer 34

Under CA law, the substituted issue take per capita with right of representation. Meaning that the property interest is split at the first level where there is living issue and distributed equally. Here,

Question 35

Per Stirpes

Answer 35

The result of a per stirpes distribution is that the distribution will divided at the T’s children level and be distributed equally to their heirs. Here,

Question 36

Omitted Spouse

Answer 36

A spouse omitted from a premarital will receive an intestate share unless the omission was intentional as shown in the will, the spouse was provided for by a transfer outside the will, or the spouse made a valid agreement waiving her right to a share in the decedent’s estate. Here,

Question 37

Intestate Succession

Answer 37

The intestate succession of the OS may not exceed one half of the value of the decedent’s separate property in the estate. Generally, will take half if no children, and one-third if the decedent has children. Here,

Question 38

Pretermitted Child

Answer 38

A pretermitted child is one who is born or adopted after the execution of the will. That child will receive his intestate share unless 1) omission was intentional as show on the will, 2) T left estate to parent of omitted child, or 3) T provided for child by transfer outside of the will. Here,

Question 39

Unknown Child

Answer 39

If at the time of execution of the decedent’s testamentary instrument, the decedent fails to provide for a living child solely because the decedent is unaware of the birth of the child, the child will receive an intestate share of the decedent’s estate. Here,

Question 40

Slayer Statutes

Answer 40

A person who feloniously and intentionally kills the decedent it not entitled to any property or benefit under the will, trust, intestacy, life insurance, joint tenancy, or otherwise. Here,

Question 41

Elder Abuse

Answer 41

A person found liable by clear and convincing evidence of elder abuse will be treated as if he predeceased the decedent. This includes physical abuse, emotional abuse, neglect, or fiduciary abuse. Here,

Question 42

No Contest Clause

Answer 42

A will will be enforced unless a benny, with reasonable cause, brings contest on grounds of forgery, revocation, or invalid transfer to person who drafted the instrument. Here,

Question 43

Intestate Succession - Per Capita w/right of Representation

Answer 43

In CA if issue survive and are unequal degree of kinship, property passes per capita with right of representation meaning there is a division at the first generation of living issue. Here,

Question 44

Int Succ - Order

Answer 44

Spouse-issue-parents-sibling or their issue-grandparents-grandparents issue-stepchildren-next of kin-parents of pre-deceased spouse-escheat to the estate

Question 45

Int Succ - Share of Surviving Spouse

Answer 45

Surviving spouse takes all CP and 1/2 if only 1 child, grandchild, parent, or sibling exists, 1/3 if more than 1 child or grandchild exists, and ALL of SP if nobody else exists. Here,

Question 46

Int Succ - Adoption/Half Bloods

Answer 46

Adopted children and half-blood children are treated as natural children/full blood children for purposes of intestacy. Here,

Question 47

Int Succ - Stepchildren

Answer 47

Generally, stepchildren have no inheritance rights. Here,

Question 48

Int Succ - Simultaneous Death

Answer 48

If it cannot be established by clear and convincing evidence that a person who would otherwise be an heir has survived the decedent by 120 hours, it is deemed that the person predeceased the decedent. Here,

Question 49

Int Succ - Advancements

Answer 49

Requires writing that lifetime gift is advance payment of intestate share

Question 50

Int Succ - Per Stirpes

Answer 50

The result of a per stirpes distribution is that the distribution will be divided at the T’s children level and be distributed equally to their heirs. Here,

Question 51

Int Succ - Modern Per Stirpes (240)

Answer 51

Equally split between first generation of live heir and deceased siblings’ issue