Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
136 Cards in this Set
- Front
- Back
|
Hillary and William are married. Hillary and William own the following assets:
(1) Blackacre, worth $400,000, which they own in true joint tenancy; (2) Hillary has $2,000 worth of miscellaneous tangible personal property which she acquired before they were married; (3) Hillary has $10,000 from earnings acquired during the marriage in a CD in her name alone; (4) Hillary inherited $400,000 in Microsoft stock after she married William; (5) William has $15,000 worth of miscellaneous tangible personal property which he acquired before they were married; (6) William has $100,000 from earnings acquired during the marriage in a checking account in his name alone; and (7) William inherited $100,000 in AOL stock after he married Hillary. Assume Hillary dies intestate, survived by her father, Frank. Twenty years later, William dies intestate, survived by his mom, Mildred. How will their assets be distributed? |
6402 does not apply in this case 20 years
(1) Blackacre is non probate so avoid the probate process. Everything will go to W. (2) Apply 6401(c): 1/2 would go to H's personal property and 1/2 to H's parents. (3) Apply 6401(a): 1/2 would go to W. 1/2 to H's father Frank. (4) Apply 6401©: $200K to W and $200K to F. (5) Apply 6401©: $7,500 goes to W and $7,500 to F (6) Apply 6401©: $50K to W and $50K to F. (7) Apply 6401©: $50K to W and $50K to F. |
|
|
2. Assume Hillary dies intestate, survived by her father, Frank. Ten years later, William dies intestate, survived by his mom, Mildred. How will their assets be distributed?
|
Section 6402.5: Real property. 1/2 of Blackacre goes to Frank.
**Includes property that was vested in as a result of or at the time of death (THIS INCLUDES PROBATE AND NON-PROBATE PROPERTY) |
|
|
3. Assume Hillary dies intestate, survived by her father, Frank. Four years later, William dies intestate, survived by his mom, Mildred. How will their assets be distributed?
|
H and W died w/in 5 years, so 640.5(b) applies.
Now personal property is subject to 1/2 for F. See 640.5(b) for subsection (e). More than $10K, must give notice to issue. So this means $2K in miscellaneous items would not be given to F. Bank account is not included because there's no written record of title. |
|
|
4. Assume Hillary dies intestate, survived by her father, Frank. Three days later, William dies intestate, survived by his mom, Mildred. How will their assets be distributed?
|
Here, since only survived by 3 days, we will treat W as predeceased H (no longer a SS) and W will not take anything of H and all of H’s estate goes to her family; we will create 2 estates and since neither one is deemed to have survive the other, then each of the separate estates will go to the corresponding families
-Blackacre: 21109 would be given to H -Community property divided evenly -Separate property goes to each appropriate parent What can we do to fix the Blackacre problem? 6402.5: 1/2 goes to Frank and 1/2 goes to Mildred (w/in 15 years, applies to non probate) |
|
|
Assume Hillary and William die in a plane crash. Both bodies are burned beyond recognition. Both die intestate. Hillary is survived by her father, Frank. William is survived by his mom, Mildred. How will their assets be distributed?
|
For the 120 hour rule, doesn't matter. They have died legally at the same time for the recapture rule.
BUT for non-probate property, apply the mili-second rule! In the absence of a writing, in intestacy, that's not an option. Two survival rules in CA: one that applies to intestacy. One that applies to non-probate property. |
|
|
6. Assume Hillary has one child, Chuck, from a previous relationship. Chuck predeceases Hillary but is survived by two children, Aaron and Barbara. How will Hillary's estate be distributed if she dies intestate, survived by William, Frank, Aaron, and Barbara?
What if there are two children from a previous relationship? |
a. non-probate stuff:
i. Blackacre – W will take this by operation of the law b. Balance of the prop: i. CP – W will get 100% of H’s 50% in all the CP ii. SP 1. We do not treat A and B as 2 survivors 2. § 6401 – here only deceased child so 50% will kick in; so W gets 50% of SP and A and B split the other 50% (each 25%) 3. F doesn’t take anything b/c we have found someone w/ more preferential value; Only if there were not issue then, we would look to F If there are two children from a previous relationship, W would only get 33%. 67% would go to two children from previous relationship, equally. |
|
|
7. Assume Hillary and William have no children, but William has one child, Gertrude, from a previous relationship. How will Hillary's estate be distributed if she dies intestate survived by William, Frank, and Gertrude?
What if W dies 4 years later? |
a. non-probate prop – W gets all of it
b. the balance of the prop i. CP – W gets it ii. SP – W will take 50% and the other 50% goes to F since there are no other more preferred people before F (§ 6401(c)(2)(B)) and G is not H’s child (thus F has more priority than G) c. *What if W dies 4 yrs later i. G gets all of W’s estate and recapture rule doesn’t apply (as W has an issue) |
|
|
Assume Hillary and William lived together but never were married. They have a child, Zoe. How will Hillary's estate be distributed if she dies intestate survived by William, Zoe, and Frank?
|
Zoe will take everything other than Blackacre (JT property).
|
|
|
H and W have 4 kids (A, B, C, D); assuming everything is CP; W dies first; 1 yr later H dies; both die intestate. Who gets what?
|
1. on W’s death, all goes to H since it’s CP
2. H dies a yr later - § 6402 tells us that it goes to the issue equally 3. Statute creates a presumption of equal distribution |
|
|
H and W have 4 kids (A, B, C, D).
A has child R; B has 2 children S and T; C has no kids; D has 3 kids X, Y, and Z. Then A, C, and D die and then H dies – there is no SS so we look at issue; here we have children and grandchildren so NOT from the same generational level; need to look at 3 elements. Who gets what under per stirpes, per capita, and per capita by generation? |
a. Per Stirpes:
Q1 – Division - 1st tier always 1st division is in first generation always Q2 - # of shares – 3 1 living child, 2 deceased with children, and one deceased w/o children – so here there would be 3 children and 3 shares Q3 – dropping – bloodline each of the GC gets an equal portion of their parent’s 1/3 Per Capita Q1 – division – 1st tier living issue Q2 – 3 shares As long as there is a live taker in the first generation, then results are the same here since B is still alive – 3 shares Q3 – dropping – bloodline A’s and D’s children get equal portions of their parent’s 1/3 Per Capita in each Generation Q1 – 1st tier living Q2 – 3 shares Q3 – pooling B gets 1/3; the remaining 2/3 gets divided into 4 b/c there are 4 living GC of deceased children (A and D); so B gets 1/3 and R, X, Y, and Z each get ¼ of 2/3 |
|
|
H and W have 4 kids (A, B, C, D); assuming everything is CP; W dies first; 1 yr later H dies; both die intestate. All children die (ABCD) – 6 living GC
|
Per Stirpes
Q1 – 1st tier always Q2 – 4 shares?? Q3 – straight bloodline – each children will get equal portion of their parent Per Capita Q1 – 1st tier living first cut is in GC b/c no living child and we drop down Q2 – 6 shares b/c 6 GC Q3 – bloodline there is no drop; everyone gets 1/6 interest Per Capita Generation Q1 – 1st tier living Q2 – 6 shares Q3 – pooling – no dropped shares each GC gets 1/6 Assuming A’s child R also died but had GGCs, Q and V - then his 1/6 divided b/w 2 |
|
|
D (decedent) has 3 children A, B, and C;
A has 5 children (PQRST) and T has one child F; B has 1 child V; C has 2 children Y and Z; Z has 2 children G and H; A, B, C, R, T, and Z all die; D then dies intestate; who takes and what do they take? |
Per Stirpes
Q1 – first tier always Q2 – 3 shares Q3 – bloodline A’s 1/3 passes to P, Q, S, and F(through T), divided into 4 shares; they will each take a 1/12 share; R doesn’t take b/c dead and w/ no issue V gets 1/3 Y will get ½ of C’s 1/3; the other 1/3 will pass through Z to G and H (each get 1/12) Per Capita Q1 – first living tier issue (7 GC – either living or dead w/ issue) Q2 – 7 shares Q3 – straight bloodline PQSVYF each get 1/7 G and H get ½ of Z’s 1/7 Per Capita Generation Q1 – first living tier issue Q2 – 7 shares Q3 – pooling PQSVY each get 1/7 2 dropped shares (passing through T to F and Z to GH); so 2/7 gets divided by 3; so FGH each get 2/21 |
|
|
O has 2 children, A and B; B is in need and O gives more money to B during life; when O dies, should A get more money?
Under Hotchpot? Under CA rule? |
CL - when C got something during lifetime from parent, they were presumed to be against your share of the estate – on death of the parents, it would have to be tallied
CA/Modern: The advancement acts against child’s share of the estate ONLY if it was clearly designated as such |
|
|
– O has 3 kids from 1st marriage and 6 from 2nd; after 2nd marriage, O gives each of C from 1st marriage land; O dies intestate; are these advancements? Under CA Rule?
|
Under Hotchpot yes, under CA no.
|
|
|
O has 3 kids; one C, A lives w/ O until O dies; a few yrs prior, O had deed the farm to A; O dies intestate; A claims that gift is not an advancement. Is this in an advancement? CL? CA?
|
1. in Thomas v. Thomas ct held that this WAS an advancement
2. in CA, we would need more evidence to make it an advancement |
|
|
F gives 50K as a down payment for a house to child A; F has 2 other children B and C; F tells child that this is an advancement against the child’s estate (this is not enough; statute requires writing) when he hands over the check; Assume A dies, leaving behind issue – XYZ; Then father dies
|
1. If the recipient predeceases the transferor, we look at sec. 6409(d) – prop is NOT taken into acct in computing the intestate share to be received by the recipient’s issue unless the declaration or acknowledgment provides otherwise
2. So A’s kids will not pay, for A’s pre-advancement |
|
|
F is a billionaire; has 3 children A, B, C; A, in need of cash, contacts X and offers to sell his position as heir, for cash. What is A's interest?
|
Until death occurs, all you have is mere expectancy; you have no legal rt until death occurs so you cannot force F to give you anything
|
|
|
2. Gift tax avoidance
M has 2 kids A &B; A has 2 kids S&T; M dies leaving ½ of estate to A; A disclaims; so we treat A as if he predeceased M and his ½ pass to his issue S&T |
3. If S&T are in a lower tax bracket, then A avoids paying the higher tax on this transfer
4. But if A specifically states that he wants his ½ to pass to his issue, then cts have held that A has exercised enough “control” over these assets so that they actually passed to him even though he disclaimed |
|
|
Impact on Creditors
GR – if creditor wants money owed by you and your parent dies leaving you a bundle, master card cannot force you to take it and pay them |
i. if you disclaim, and shift the portion of bequest to others in the family, this disclaimer is held to be effective as of the moment of the decedent’s death
ii. §283 - a disclaimer is NOT a fraudulent transfer by the beneficiary b. Exceptions to GR i. disclaimers cannot be used to avoid taxes/IRS debts ii. cannot use disclaimers to avoid payment to Medicaid |
|
|
Post-mortem tax planning
M has 2 kids A &B; A has 2 kids S&T; M dies leaving ½ of estate to A; A disclaims; so we treat A as if he predeceased M and his ½ pass to his issue S&T |
i. if ST are in a lower tax bracket, then A avoids paying the higher tax on this transfer
ii. but if A specifically states that he wants his ½ to pass to his issue, then cts have held that A has exercised enough “control” over these assets so that they actually passed to him even though he disclaimed |
|
|
M has 2 kids AB; A has 2 kids ST; M dies intestate w/ a estate of 200K; M had made a prior advancement for 100K to A
|
1. under Hotch pot, out of a 300k (each would get 150K), A would only get 50K of this 200K (since he already got 100k in advancement) and B would get 150K
2. A decides to disclaim so that the 200K passes through, avoiding 50K penalty – NOT allowed a. §282(b)(2) – you will not be treated as predeceased for the purposes of the advancement b. so here, Hotch pot will apply |
|
|
M has 2 kids AB; A has 1 child C; B has 9 children; M dies intestate; A predeceased M
1. A’s ½ passes to C and B gets B’s ½ |
2. If B disclaims – under sec. 240, the first cut is made under 1st living taker and so drop down to the 9 and M’s estate will be divided into 10; B has accomplished a higher portion for his 9 children - can’t allow this to happen
a. §282(b)(1) – you may be dead for distribution purposes, but for purposes of deciding first live takers, that will still be you i. can’t use a disclaimer to avoid being the first live taker |
|
|
Example 2-1: Intestate has three children: Son One, Two nad Daughter. Son One predeceased Instead survived by two children. Arthur and Brenda, both of whom survive Intestate. Son Two also predeceased Intestate, but Son Two had no surviving decedents. How would Intestate property be distributed applying per stirpes?
|
Daughter receives one half, Arthur receives one-quarter,r and Brenda receives one quarter. If Son One had survived, Son One would have received one half. No share for Son Two b/c was not survived by a decedent.
|
|
|
Per Stirpes: Grandchildren
Using same facts as Example 2-1, assume that Daughter also predeceased intestate and was survived by her only child, Charles. Charles survived intestate. How would Intestate's property be distributed applying a per stirpes distribution? |
Arthur receives 1/4, B receives 1/4, and C receives 1/2. A and B would each still receive 25% and Charles as only decedent would take the share Daughter would have received (50%). Per stirpes tresses bloodline over degree of relationship.
|
|
|
Intestate had for children, A, B, C, and D. Both A and B died before Intestate. A was survived by one child, E, and B was survived by two children, F and G. How would property be distributed using a per capita what representation distribution?
|
C would get 1/4, D would get 1/4, E receives 1/4 and F receives 1/8 and G receives 1/8. Intestate' property is divided into shares at the first generation with survivors, that his, children. C and D as surviving will receive one of the quarters.
|
|
|
Intestate had two children, S and D. S predecease Intestate survived by two children, A and B, both of who survived intestate. How would intestate's property be disturbed applying per capita with representation distribution?
|
D= 1/2; A=1/4; B=1/4. Same as per stirpres, reasoning is different. At what level is estate initially broken. Always first generation with per stirpes. First generation of live takers for per capita.
|
|
|
Parent has three children A, B, and C. C predeceases spouse. How would you distribute Parent's estate when P dies?
|
Parent's estate would pas 50% to each A and B. No share is set aside for C because C did not have nay descendants who survived Parent. Spouse has no claim to property because spouse, parent' child in law, is not a decedents for these purposes
|
|
|
G and C have been living together for 15 yars. They have 2 children, and G has child from a prior relationship. Many years from now, G drown accidentally while filming a move. she is survived by C and her 3 children.
1) Who takes G's probate property under typical statue of descent and distribution if she dies intestate? 2) Who takes G's probate property under UPC statue of descent and distribution if she dies intestate? |
1) C doens't get anything if she isn't a spuse, but she probably qualifies for CL marryiage. Under the typical statute of descent and distribution, C takes 33% of her property b/c more than one child also survives her. The reminign 66% is divded equally mong her three childrne. If the jursdiciotn does not recognize common law marraige, G has no surviving puse and all of her property passes equally to her three children.
2) Under UPC approach, threshold question is still whether C is a spouse. If so, UPC allows C to take first $100K and 50% of rest. Three children split remaining 50% evenly |
|
|
J and L met while servin in military. They were married a few years later but made a will. Both ere killed ina training accident. L was killed instantly. J suffered severe burns and died 3 days later. L was also survived by her mother, M. J was survived by her father, F.
a) Who takes L's and J's property under traditional common law approach? b) UPC approach? |
a) Just need to survive by a mere millisecond, so J qualifies. Because L is also survived by her mother, J takes 50% of L's property with remainder going ot L's mom. When J dies three days later, he doe snot have a surviving spouse. Because when J dies he doe snot have a surviving spouse, all of J's property including 50% from L goes to father, F.
b) Did not legally survive spouse so does not get property. |
|
|
Decedent has following issue:
Children: A, B, C and C's survivng spuse. A has D and E. D has I, J and k. B has F, G, and H. F and L. H has M and N. C has X, who has Y. Assume A, B, C, D, F, and X predecease the decedent. Who takes? |
Per capita: Divide at first live taking cgeneration so here that would be second (Divide estate into 6 shares). Under per ciaptei, dropping shares by bloodline, D's 1/6 drops to I, J and K (1/18). E gets 1/6, F's 1/6 goes to L. G keeps her 1/6. H keeps her 1/6. And X's one 1/6 drops by bloodline to Y.
Under per stripes approach, divide at first generation. Here, A, B, and C take a share. Drop so 1/ falls to D and E, etc. Under per capita at each generation, divide at the first generation where there is a live taker. Same as reg per capita. BUT here three dropping shares are D, F, and X. Their three 1/6 share are pooled so that one half of the decedents estate drops to great grandchildren I, J K L and Y who take 1/10 each. (3/6x1/5)=(3/10)=(1/10) |
|
|
See Parenthetic chart on page 52 of Emmanuel s. Who takes the decedents estate if he or she dies intestate and the jx applies the degree of relationship with parenthetic tiebreaker approach?
Who takes the decedent' estate if he or she dies intestate and the jx applies the UPC approach? |
Degree of relationship with parenthetic tiebreaker approach?
D takes all property because he is related by 4th degree, whereas others are by 5th degree. Under the UPC approach, if there is not a live taker within GP's line or close, property escheats to estate. The state takes it all. (DO WE NEED TO KNOW UPC??) |
|
|
H and W are married have have two children, A and B. They divorce, and H marries W2. W2 adopts A and B, and thereafter becomes pregnant. H dies unexpectedly during the seventh month of W2's pregnancy, and W2 dies two months later while giving birth to C. One year later, A dies intestate, with no surviving spouse or issue. Who takes A' property under the modern trend/UPC approach?
|
A has no surviving spouse or issue. A's natural parents are W and H. H predeceases A so H is not an eligible taker. W survives A, but W2 adopted A and B. Normally adoption establishes a parent children relationship and severs completely. But if adoption is by a stepparent, exception is that adoption severs right of natural parent who is not married to stepparent to inherit from the but the child can still inherit form that natural parent.
here, b/c child predeceases, exception is not applicable. Next possible takers are issue of parents. B is hwole blooded. C is A's half blooded siblign. No distincion between whole and half blood so they take equally. |
|
|
T is a wild and crazy guy. L claims that T is the father of her child, but T refuses to acknowledge the child is his. T moved on and Lulu raised the child, S, on her own without help from T. S grew up to have successful musical career only to die intestate recently in a plane crash. T has stepped forward to assert his rights. Who takes S's property under modern trend/UPC approach?
|
Only mother because T has not acknoledge the child. NEED TO KNOW UPC?
|
|
|
M is a single mom. Her H died any years ago and she struggles in raising her two children A and B> A has an ideal child excelling throughout her years in school and attending college. M gave A $100K to help offset expense of private college. B, has been an underachiever. M died last week with an estate of $300K. How should estate be distributed? Under CL? Under modern trend?
|
Under CL: Inter vivos gifts are presumed to be advancements. The advancement amount is added back into decedent's estate ($100K plus $300K). Hotchpot of $400K is divided heirs so each would get $200K.
Under modern trend, presumption against inter vivios gifts. M's estate is divided evenly so each gets $150K. |
|
|
Assume H and W are married. They own Subarcre as JT. THey both have life insurance ith the other as sole beneficiary. And they have wills leaving all of their probate property to their surviving spouse. One day W is found dead. She had been murdered, and cause was not clear. W is survived by H and partners. H is tried for murder, but acquitted. In civil case, he is found responsible for death. What happens to W's property?
|
If intention, JT is converted into TIC.
|
|
|
H and W are married. They have 2 children, A and B (adult). A has two children, N and M. B has one child, F. Harry also has a child, P, from a prior marriage. P has one grown child, T. H dies intestate. P always liked W and is concerned that she might nto have enough money to get by now that H is dead. P disclaims his right ot take any property from H's estate. Who takes and how much?
|
Under UPC/modern approach, W takes first $100K and 50% goes to A, B, and P. But P has disclaimed. Now's P's child, T, steps up to take Ps share by representation.
|
|
|
Suppose two witnesses signed T's will in T's dining room while T was in her bedroom. T knew that the witnesses were signing and could have walked not the dining room to see them sign. Does this meet the line of sight test? Conscious presence test?
|
Not line of sight test b/c cant see a wall.
DOES NOT meet conscious presence test because there was no evidence that the witnesses were so near to the T that she was conscious of where they were and what they were doing when W's signed will. In CA--WOULD BE VALID |
|
|
Suppose T's lawyer takes T's will to T's home, where T signs the will and the lawyer attests as a witness. The lawyer returns to her office with the will and has her secretary call T on the phone. By telephone, T requests the secretary to witness his will; the secretary then signs as an attesting witness. Can the will be probated?
ISSUE: NO PRESENCE OF A SECOND WITNESS PRESENT AT THE TIME OF THE FIRST |
NOT VALID:
No telephonic presence! |
|
|
I call up lawyer and tell him I’m coming in to his office to sign it; as I am walking up the stairs, I fall down and die.
Will the writing be enforced? |
1. Strict – no signature, no will
2. Substantial – no waiver of signature reqt; no will 3. Dispensing – still need CC evidence of T’s intent; no will |
|
|
I get to L’s office; will is there, witnesses are there; I suddenly collapse and die.
Will the writing be enforced? |
1. Strict & substantial compliance – no signature, no will
2. Dispensing – we need more info; can argue that not clear and convincingevidence of T’s intent |
|
|
A writes a will and signs it, and intends to resign it in front of witnesses a couple days later, but dies before that happens
|
1. Strict & substantial compliance – no signature, no will
2. Dispensing – we need more info; can argue that not clear and convincing evidence of T’s intent and that T may have change their mind after |
|
|
1. Someone comes in and claims that R (no relatives, friends, family) showed her a will that he writes and signs with two witnesses + (her friend and someone else they found on the street). R puts the will in an envelop to be lodged with the probate court and deposit it in a post office box. R dies, girl calls the court, the court has no records of this will. What’s the result?
|
a. Problem – no will, no writing, even though she had two witnesses (friend, but can’t find the other guy)
a. Harmless error jurisdiction – can you prove by clear and convincing evidence? i. Court would probably upheld the will, since argument is that she and the friend can testify to the story, unless there is evidence of fraud here. (what about writing req???) |
|
|
I type a will on my computer; print it and sign it; will this will be admitted to probate?
|
Under 6111c, we can look to the doc to provide context to provide testamentary intent; this is clearly my last will and I said I leave my estate to …
This will is not a plain vanilla attested will but rather a holographic will – need to show material provisions in handwriting of T and signed by T and testamentary intent Testamentary intent? Statute says that TI can be in T’s handwriting or as part of a commercially printed form will – not clear how this hypo would come out |
|
|
What if your L sends you a partially completed draft – is this a commercially printed form?
|
Probably shows an incomplete intent!
|
|
|
Arash is hit by a car and rushed to the hosptial. He is lucid but has sustained serious internal injuries and it is not clear whether he will make it. Pamela, his girlfriend, hears about the accident and rushes to his side--bringing with her a draft of his will that leaves everything to her. Pamela calls in two nurses, and in front of both of them, Arash declares that the document in this last will and testament and disposes of his property as he wishes. He picks up the pen and starts to sign his first name when suddenly the door to his hospital room o[ens and his wife, Alexiandra, walks in. She is livid to see Pamela there. All hell breaks loose, and in the commotion, Arash forgets to complete his signature. Pamela takes the document out tot he nurses' station, where she has the nurses sign their names.
Is the will valid under the traditional common law approach? Is the will valid under the modern trend approach? |
CL-No valid b/c 1) not properly singed (incomplete signature) and 2) W's are required to sign the will in the testator's presence. (not in Arash's room but in nurse's station)
Modern: Still invalid b/ 1) still not proper signature. When testator is interrupted in signing, it is assumed he intended to sign his or her full name. |
|
|
Tess has a properly executed typed will. When the will is found after her deat, it is discovered that physically below her signature line is a handwritten sentence that provides as follows: "I also give $1K to my friend Betty." Is the will valid? Is the gift to Betty valid?
|
Determine whether: 1) CL approach which requires that the will will be signed at the end) or the 20 the modern approach (does not require the will to be signed at the end; 2) when the handwritten clause was added to the document (before or after document was signed)
CL-If jx requires subscription @ end and it was added before testator signed, the ENTIRE will is invalid. If addition was AFTER subscription, then original will is still valid. Modern: If the handwritten sentence was added temporarily after the tetaor signed the will, the will is valid. Handwritten part is not valid unless it's holographic will. Because it was not signed won't be holographic. If the handwritten addition was added temporally before the testator signed the will, the handwritten material is a valid part of the original will, and both the will and the handwritten material are valid and can be given effect. |
|
|
Tim has a heart attack. He remains conscious and alert. His gf, Wi, and his neighbor, Joe, put him in the back set of his car. Joe gets in back with Tim. Wi jumps in front and starts driving to the hospital. Tim's attorney had sent Tim a draft of anew will. His old will gave all of his money to UCLA. His new will gives half to Wi and half to UCLA. As Wi was running around the house she grabbed the new will. T signs it. Joe, who is sitting next to Tim and watching all this, signs it. Joe passes will to front seat where Wi signs it at first stop light. TIm survives the heart attack, only to die form food poisoning from the hospital. Who takes T's property?
|
Proper execution of the will:
1) Line of sight--not met 2) Conscious presence: Wi does not satisfy line of sight, but sitting in driver's seat she was conscious (totality of circumstances) that T signed will. Disinterested Witness: 1) CL--interested witness voids the entire will. 2) CA purge approach--purged of the excess interest he or she stands to gain. (W stands to gain nothing, so she is purged of 50%) 3) Modern approach: 1/2 of UCLA goes to residuary takers |
|
|
Gerri and Dick have been married for years. Her will leaves everything to Dick, or, in the event he predeceases her, to her mom. G thought she and D were happily married until she discovers he is having an affair with B. G is crushed. She hand writes her mom a dated letter describing the anguish and debates filing divorce. "And to think that I have a will that leaves all of my property to that jerk. It should go to you."
B then kills G. Who takes G's property? |
G's property goes to D unless the writing she sent to her mother qualifies as a holographic will.
Here, there is a writing, dated, (entire doc is in G's handwriting), and it is signed. Issue: testamentary intent: appears document falls short. "should go" Note: homicide doctrine is not applicable. It applies only to the killer. Here, Bambi killed G, not D and there is no evidence that D was in any way involved in G's death. (Is B barred from being part of D's will?) |
|
|
D is afraid to fly. A asks him to go to Hawaii with her. D goes with her. Before getting on the plane, he hand writes, dates, and signs "If the plan crashes and I die, I want all my property to go to my alma mater, Chico State." D survives plane but dies in car crash. Chico state offers writing for probate. D's heirs oppose it. Who gets D's property?
|
This is a valid holographic will. The issue is whether this is a conditional will that was to be effective only if D died in a plane crash. Most courts construe such clause more as an explanation of why the testator is executing the will, rather than a condition precedent to the will being valid. (WHAT DOES PROF THINK?)
|
|
|
G and D have been married for years. Her typed will leaves everything to D, or in the event he predeceases her, to her mom. G though she and D were happily married until she discovers that he is having an affair with B. G takes out the envelope containing the will and writes across the envelope in big letters, "VOID." G is killed in a car crash. Who takes her property?
|
Issue: Proper revocation of will.
Proper revocation is by act or by writing. If by writing, the writing has to qualify has a valid will. Act of writing VOID is arguable destructive and performed with intent to revoke. Here, it is written on the envelope. At common law, act has to affect the printed words of the will. Even under modern trend NOT ENOUGH? |
|
|
Tami executes a will leaving her property to her alma mater, Loyola, and takes it home with her. A month later, a violent earthquake strikes the area, totally destroying T's house and killing her. Her family cannot finder her will. Who takes T's property?
What is the difference, if any, would it make if Tami had executed duplicate original wills in the previous question? |
Presumption is revocation. But can be rebutted if a more plausible explanation for why will cannot be found (house was destroyed). Court will take extrinsic evidence as to the terms of the will, and, if the terms are established, the court probates the lost will.
If duplicate previous wills....Depends on Jx. Some use presumption doctrine if ALL duplicates have been destroyed, some if only one has been destroyed. |
|
|
Tom properly executes a will. The will provides in part as follows, "I give $10K to my favorite research assistant, Raquel, and I give the rest, residue, and remainder of my estate to my church." Following Tom's death, his will is found, but the line is drawn through the sentence giving the gift to Raquel. Who takes what?
|
When will is found with a destructive or mutilating mark, presumption arises that testator made mark with intent to revoke. (BUT DON'T YOU NEED SIGNATURE?)
Jxs differ on difference between making the mark with pen or pencil. The church would take the residuary along with the rest of the residuary. |
|
|
Toni has a properly executed will that provides in part as follows: I give my best friend G, $10K. I give the rest of my estate to my alma mater, the University of Chicago. Thereafter, T hears that her best friend is dating her ex-boyfriend, Frankie. T takes out her will and, with a pen, draws a line through her gift to G. She tells everyone she revoked the gift to G because she is dating her ex-boyfriend T is so depressed she commits suicide. It turns out that although G is dating someone named Frankie, is is not the Frank that Toni used to date. What is G's best argument that she is entitled to take? What are her chances of prevailing?
|
G will claim that she is entitled to take under dependent relative revocation. Under this doctrine, the claimant must show that there was a revocation based upon a mistake, and but for the mistake, the T would not have revoked. The courts typically apply doctrine only where there is a failed alternative scheme or mistake is set forth in the revoking instrument. T validly revoked the gift by drawing a line through the gift with the intent to revoke.
|
|
|
J had a valid will that left all per property to P. She broke up with P and started seeing B. Shortly after seeing B, she properly executed a new will that left all of her property to B. Not long after, she grew tired of B and went back to P. She hand-wrote, dated, and signed an instrument that said, "I hereby revoke my will leaving my property to Ben. Jalo" She tells everyone that the reason she revoked her second will is that she really loves P and wants him to have her property. She dies on operating table during elective surgery. Who takes her property?
|
A handwritten instrument qualifies as a valid holographic will. The holographic will here is will #3 and it revokes will #2. Will #1 is effective b/c sill #2 never revoked will #1, it just "covered" it. (WHAT DOES THIS MEAN?) page 118 of Emmanuels
|
|
|
Surfer Dude was a valid will that leaves his "surfboard to Jane, and the rest of my property shall go as directed in alatter I will send to my executor, H." Surfer Dude then types and signs a letter telling H that he wants all ofhis property to go to the Heal the Bay organizaton. Thereafer, Surfer Dude executes a valid codil apointing Jake as exeuctor. After making this change, Surfer Dude dies from an infection he contracts from surfing. Who takes his proeprt?
|
The letter does not qualify as a will. No evidence supports that any witnesses saw its execution. Surfer Dude executes a codicil. Codicil is presumed to re-execute and re-date the underling will to the date of the codicil.
|
|
|
T writes, "$10K to A and B." Crosses out A. Who gets what?
|
Strict CL: Will is invalid. A and B won't get anything according to will.
CA: A gets $5K UPC: A gets $10K |
|
|
T has a will and in this will, "I give all to my wife and if she predeceases me, to C."
|
1) With respects to wills, W doesn't take. We treat ex-spouse as though she pre-deceased!
2) If we treated W as through she predeceased, does that trigger the alternative disposition in the will? a) Some Jx: If you divorce, then you are divorcing but her entire family tree. You're free in your documents to provide whatever alternatives you want! Many jxs, including CA, treat it as a controlling destination. |
|
|
T has a valid will; T then has a valid revocation of that will; this revocation is tainted by mistake; T’s act to revoke was based on a mistake of law or a mistake of fact and b/c of this mistake the revocation took place
|
i. causation element – “but for” the mistake T would not have revoked
ii. we have a valid revocation based on the mistake and but for the mistake T would not have revoked iii. remedy - under this doctrine, cts will allow us to ignore the revocation |
|
|
Clause 5 of T’s typed will says: “I bequeath sum of 1K to my nephew, Charles Blake.” T crosses out the 1K and substitutes 1,500; Then writes her initials and date in right hand margin; T dies; Blake wants 1,500.
What if T crossed out and put $800? $500? |
Not a valid will or holographic will/codicil
Mistake of law--T thought that this was a valid codicil but was not. DDR--1) give effects to revocation and Charles gets nothing; 2) ignore revocation T would prefer 1K over zero. Dealing with failed alternative disposition so need to bring in evidence of its failed alternative disposition which indicates T was trying to increase the gift to $1500. Codicil is invalid but has evidentiary value to show this. THE LOWER THE AMOUNT, the weaker argument to give Charles $1K rather than $0. |
|
|
In his typed will, that has legacy of 5K to John Boone, T crosses out John and writes Nancy; Nancy can’t take b/c gift to her is not attested
|
i. DRR
1. revocation of gift to John is valid 2. mistake of law – T’s intent was to create a holo codicil 3. we have a failed alt disposition 4. causation? Yes Nancy gets nothing b/c the codicil was invalid; we need to figure out whether T’s intent was for John to get zero or 5K? the evidence is the crossed out name of John and evidence suggests that T wanted John to get zero |
|
|
preparing to make new will, T writes “VOID” across her duly executed will; several days later T shows the defaced will to her lawyer and instructs L to prepare new will; L prepares a draft, but when shown to T, T says that it wrongly describes some prop and must be changed; before it’s corrected and executed, T dies; L testifies as to new beneficiary
|
i. Can’t apply DRR here - even though we have valid revocation, there still needs to be a mistake that caused the revocation; here the only mistake was that T thought there would be a new will; there is NO mistake of law or fact here
|
|
|
T’s will leaves 5K to his friend Judy, and residue to brother Mark; T later executed codicil – “I revoke legacy to Judy since she is dead”; but J is still alive and survives T.
|
i. DRR applies - the revocation of earlier will was valid, there was mistake of fact, and there is but for causation; b/c there is a valid new will, we must find the mistake in the expressed language of the new writing – here this is present: “I revoke b/c she is dead”; w/o this expressed language Judy would not have a case
|
|
|
Suppose the codicil had read: “I revoke the legacy to Judy, since I have already given her 5K”. in fact the T did not give Judy 5K during life
|
1. we have valid revocation but the mistake has to be beyond knowledge of T ; if the T was aware of the mistake or which was easily discoverable, then not a mistake
|
|
|
“I revoke the legacy to Judy”; evidence shows that 3 weeks prior to execution of codicil, T was told by a friend that Judy had died
|
we have revocation by writing, and operating under mistake but we did not reference this in the writing so w/o this expressed evidence (that judy had died in writing) ct will not give benefit of doubt to Judy (EVEN UNDER CA?)
|
|
|
T makes will leaving estate to daughter; daughter takes vacation and town she was staying in was destroyed by hurricane and is reported that she died; T tears the will in front of everyone saying that no more need b/c daughter is dead; next day, T dies in accident; D in fact is alive
|
i. Valid revocation by act, mistake of fact, but for causation
ii. but b/c revocation by act we need to show a Failed alt disposition; here, there is NO failed alternative disposition; there is no alternative plan at all to show the mistake; so no relief for daughter (DIFFERENT IN CA?) |
|
|
T in will gives 1K to each beneficiary set forth in my brother’s will
|
i. Assuming brother already has a will, you can use incorp by refer to give effect to T’s wishes
ii. If brother doesn't have a will yet then can’t incorporate b/c not in existence iii. Referenced Act – brother making a will 1. independent significance - brother is disposing of his stuff; this is a testamentary act but not for T; it’s independent w/ re to T |
|
|
T in will leaves 10K to each child but at the time, T has no children; later has several children
|
The referenced act – having a child
Independent significance – yes having a child is not solely for a testamentary scheme |
|
|
T leaves contents of right hand drawer of her desk to A; in the drawer there are a savings bank passbook in T’s name, certificate for 100 shares of GE stock, and diamond ring
|
i. referenced act – putting things in the drawer
1. indep significance? Will depend on whether items put in drawer solely for testamentary reasons (normally or what the person customary stores in a drawer?) a. More problematic w/ the ring or stock certificates (which are for testamentary purposes) |
|
|
What if T leaves contents of her safe deposit box
|
1. big concern is fraud; in a context like this w/ a safety deposit box, the person that has access is usually just the T and this cuts down the potential for fraud
2. cts almost always will give the contents of safety deposit boxes to designated beneficiaries 3. modern trend (low std) - unless there is evidence of potential fraud, cts will honor the will |
|
|
I give 1000 dollars to my research asst.; I die 10 yrs from now; who gets the 1k – my research assistant today or the research assistant 10 yrs from now
|
i. General rule of construction – we construe the will as of the time of execution
1. w/o more we will assume that my research asst at time will was executed was the intended beneficiary; you can clearly alt intent Act of independent significance: T picks the research assistant |
|
|
Testaor hangs a very valuable art collection in his house. Can beneficiary get contents of house, including expensive art collection?
|
Yes, act of independent significance (enjoying art collection)
|
|
|
What if T leaves contents in safety deposit box and says in will I give stock to A, B, and C in envelopes.
|
Court held these are acts of independent significance. (Will v. McCullen) or incorporation by reference (Smith v. Weizel)
|
|
|
T make a K w/ A to leave everything to A if A takes care of T for life; T executes will leaving estate to A, A doesn't care for T; T rescind the K but doesn't do anything to the will
|
a. fact that A breached the K has NO effect on the validity of the will; so A gets what the will states
b. remedy for T’s successor in interest – sue for breach of K and unjust enrichment; T performed and A did not |
|
|
A dies of AIDS; After A’s death, his roommate, B, claims ½ of A’s estate alleging that A promised this if B cared for A for his life; B produces doc typed by B and signed by A and 1 witness
|
a. not a valid will – need 2 witnesses; not a holographic will either; no will and so A is intestate
b. UPC 2-514 – either a specific provision in will or in a separate writing signed by decedent that is not a will or an express reference in the will to a K and extrinsic evidence proving terms of K i. B has burden to prove that K existed and terms of the K – UPC doesn't require a writing c. Modern trend – requires some kind of writing signed by decedent evidencing the K or a notion of evidence of K i. old rule drew distinction b/w family members and everyone else - if family members, you did not have to have a writing ii. legislature has expanded the provision allowing fully oral claims of K to be asserted as to all claimants 1. BOP - clear and convincing |
|
|
W promises H to take care of him for his life in consideration of H devising prop and H does; H dies. Does W have a claim for H's property?
|
a. since W and H are married “taking care” is not a consideration; so estoppel won’t help out W
b. If W and H not married - W is part performing and there is now consideration; now we have a K and all W would need to show is clear and convincing evidence (ex: H told friends) |
|
|
H and W have a joint will; H dies and W takes it all under terms of will; W then travels to Europe finds a new friend, brings him back and creates a new will, leaving everything to friend
|
a. general rule – simple act of executing a joint will does NOT create a K not to revoke
b. § 21700(b) – execution of joint will or mutual wills does not create a presumption of a K not to revoke the will i. CA and modern trend – you have to set a specific provision imposing a duty not to revoke |
|
|
H and W have joint mutual wills w/ express provision that they will not revoke; W dies first; there are kids; H gets everything
|
H can revoke and leave everything to new girlfriend; by entering into this K not to revoke you are still allowed to revoke but once you revoke, you breach and this gives K rights
i. you probate the new will and then seek enforcement of the K b. This K b/w E and J also includes prop acquired by E after J’s death c. There is no obligation on part of SS to live restricted – you are entitled to enjoy the assets, but there are limits (can’t be lavish) i. Or else ct will impose a constructive trust to hold for the benefit of children |
|
|
there is joint will w/ expressed provision not to revoke and everything to kids; W dies and H remarries
|
a. on H’s death, some part of H’s prop will be subject to SS’s claim – obligation to support spouse continues after death; but w/ a K not to revoke, we are preventing H from providing for new spouse after H’s death
b. CA – CP system – every spouse has equal, present interest; you own ½ of everything; as a spousal protection device, you gain protections as soon as you marry c. If H dies w/o executing new will, H has not breached the K not to revoke; children would be beneficiaries of the estate i. New spouse gets first as a priority beneficiary ii. by not expressly revoking, we preserve opportunity for new spouse to assert widow’s share d. If H signs a new will giving estate to new spouse, kids become K beneficiaries i. now kids are creditors and assert claim as creditors and in ct the creditors take first ii. the K gives kids the entirety of the state and new spouse gets zero iii. In Putnam held that there was strong public policy for protection of SS (spousal support?) which overrides presumptive priority of K creditors – new law (this is a growing trend) |
|
|
The K b/w H and W obligated H not to revoke or do anything that would adversely affect the kids’ rts
|
a. We are going beyond simple act of revocation; the simple act of remarrying would do this and kids elevated to creditor status
|
|
|
H asks W for his will, intending to destroy it; W holds up an envelope, pretending it contains the will and burns it; when H dies, W probates H’s will (the one she pretended to destroy), under which W takes all of H’s estate
What type of fraud is this? What is the remedy? |
i. Fraud in execution
ii. Remedy – no legal remedy b/c will was valid iii. Equitable remedy – Constructive Trust based on unjust enrichment |
|
|
T’s first will devised everything to niece J who lived in distant city; T’s 2nd will, executed in hospital 2 days before T’s death, revoked prior will and left everything to friend C; After T’s death nurse in hospital testified that day before execution of will he heard C tell T that J had died and T replied that she wanted C to have everything.
What type of fraud is this? What is the remedy? |
i. Fraud in inducement
ii. If C was merely mistaken, not fraud; even if there is fraud, need to show causal link |
|
|
I give my house at 1313 Mockingbird lane to LLs; but I don’t own a house on 1313; my house is on 1315.
What will construction doctrine applies? |
b. mis-description doctrine struck out the error and if there is enough left behind to give effect, we’ll let it control
c. here, if we strike the number, left w/ “I give my house to LLs”; first we needed to identify the problem – I don’t own house on 1313; next – figure out whether I own a house and which house it is |
|
|
I give 100 to favorite cousin Jennifer; nothing here seems patently wrong; but I have 3 cousins named Jennifer; first need to show that there are multiple persons named Jennifer and then that 1 is favored over others. What will construction doctrine applies?
|
Equivocation doctrine
|
|
|
I give 10K to my favorite colleague at LLS, Dan
|
X
|
|
|
T was married to Bessie. T had 3 kids from prior marriage. T cared for Bessie and her kids. In will, T says, “I give my real and personal property to Bessie to her and her heirs and asisngs forever.” Bessie survivors before T. Can children take?
|
i. If antilapse applies, it’ll go to issue of W; If it doesn’t apply, it goes to H’s 3 children by intestacy
ii. In CA, wife doesn’t stand in an appropriate degree of relationship to trigger antilapse 1. So antilapse won’t apply, and all goes to H’s 3 children iii. If Gift was directly to W’s child D and D has 2 children; and D dies c. antilapse attaches to either the kindred of decedent or by being kindred of a current, deceased, or former spouse; here D is a kindred to a deceased spouse and antilapse applies and |
|
|
I give 10K to people sitting in front row of Fall 2001 Trust and Wills class; there are 10 people and each would get 1K; what happens if 3 drop the class or die?
|
Group is subject to change until I die; it’s at time of death that everything is distributed
So at T’s death, the remaining 7 members will divide the 10K |
|
|
T makes gift to back row of his T&W class. Assume that one member (A) is related to him & A has issue & A predeceases T. Issue: do we split gift into 9 instead of 10 shares because one guy in the class died, or give that share to the guy’s issue by applying antilapse to preserve the gift to A?
|
Finding that a class exists is in some ways opposite to antilapse rule in some jurisdictions bc using an express class gift is, arguably, an expression of contrary intent. BUT in CA, we have a different rule 21110(a)
A transferee under a class gift shall be a transferee for the purpose of this subdivision unless the transferee's death occurred before the execution of the instrument and that fact was known to the transferor when the instrument was executed. So Antilapse will apply to save your gift w/in a class gift! |
|
|
“I leave my estate to my son’s equally.”
What if one of the sons dies before T? |
Antilapse would apply it T wrote this before one of the sons died. Wouldn’t apply if T wrote after son died. Bc T knew that son was not living, thus she could not have intended to included him in the class
|
|
|
Kristin executed a valid hologrphaic will that cotnained the following provision: Within the next few days, I will prepare a list of some personal items that I wish to be givne to the persons named thereon. Several days later Kristin prepared and signed the following handwritten list: 1) M's ring to Laura; 2) D's stickpin-Larry; 3) Ruby ring-Samantha
K died and was survived by her children. Can friends get items? |
YES. To be admissible, the writing must 1) be signed by testator; 2) describe the items and the devisees with reasonable certainty.
|
|
|
Cary executed a valid will that made, among others, he following bequest: I give my piano to my sister Roberta w/ the hop ethat she will rel\alzie her dream of becoming a concert pianist.
Residue cluase of Cary's will reads: I give, devise, nad bequeath the remainder of my estate to my brothers and sister, share and share alike. At time he executed will, Cary had one brother, Ted, and three sisters, Roberta, Edwina, and Jdy. T predeceased C and was survived by his wife and one child. ROberta predeceased Cary and was survived only by her parents. Edwina and Judy survived Cay. How should Cary's estate be distributed? |
1/3 of the estate each to Edwina, Judy, and Ted's child.
Where a gift (residuary or other) is given to a beneficiary who is the decedent's grandparent or lineal decedent from the decedent's grandparents and beneficiary precedents and decedent, the beneficiary's issue take the beneficiary's gift unless the instrument express Both Roberta and Ted predeceased, BUT Roberta was not survived by issue so her gifts lapse and pass through the residuary to the other residuary takers. |
|
|
Tim executed a valid will disposing of his real estate to "my nephew Albert" and devising the remaining of his estate "to my brothers and sisters, share and share alike." Tim specifically disinherited his own children. When h died, T was survived by Albert, two brothers, on sister, and T's three children. A has one child, a son. After T' death, Albert filed a valid disclaimer. How should Tim's estate be distributed?
|
The real estate to Albert's son; residue to T's two brother's and sister.
|
|
|
T executed a will giving all his real estate to his sister and the residue to brother. T has a mortage on his $125K property of $90K. He also has stock worth $300K. What should sister get?
|
Blackacre, encumbered by mortage. Stock should go to brother.
|
|
|
J and B meet on vaca and after B has a girl. Court determines J is father. J pays child support but never acknowledges daughter. J made will prior to daughter's birth to give estate to charity. If J dies, who should his estate be distributed?
|
To daughter, because paternity was established before J's death.
|
|
|
T owns a company. Will indicates employees at death will get $10K. What kind of exception allows this will?
|
Act of independent significance.
|
|
|
Is there a signature requirement for holographic will?
|
NO
|
|
|
Father orally agrees to give Son all of estate of Father gets to live with/gets taken care of by SOn. Then Father dies and leaves everything to FRIEND. Who should take?
|
FRIEND...AGMT MUST BE IN WRITING.
|
|
|
T makes a bequest of "$10K each to B's children." But, B has no children at time. Who takes?
|
NOT children. When T akes a specific per capita bequest to members of a class and there are no members of a class living at T's death, gift fails. Entire estate passes intestacy.
|
|
|
Wife names Husband as beneficiary of life insurance. She divorces Husband are remarries but never removes Husband off life insurance. Is the Husband still a beneficiary?
|
Yes, because federal law governs.
|
|
|
Wife is going through a divorce but tells her fiance she is single. He marries her half of his estate to her. Other half goes to his Aunt. When he dies, does she take half of the estate?
|
No, she will get a constructive trust on her share in favor of Aunt. (Doesn't want to have it go to intestacy...follow T's intent/wishes!)
|
|
|
Ten years ago, T purchased 300 shares of Stock of Rex, Inc., family corp. Nine years ago, T exected a valid will, which provided:
1) 300 shares of Rex Inc and $1K go to brother in law. 2$15K to son. 3. Resudie to wife. Then, T and wife have a second child, T and wife divorce, T remarries, and brother in law kills T via voluntary manslaughter. Who takes what? |
ASK SLISCOVICH!! (1/3, 1/2?? to new wife??)
New child will receive half of specific gift? |
|
|
T and witnesses X and Y. While Y was away, X signed the will as a witness. When Y returned, she signed. Is there a valid will?
|
Yes, because UPC does not requrie that two witnesses sign n each other's presence. Does require reasonable time of witnesses the T sign or acknowledge the will.
Although X and Y did not sign the will in form to each other, signed shortly after having witnessed T execute her will. T has a valid testamentary writing. |
|
|
T was in possession of his original will. He made statements to several ppl that he tore it up. When he did, that will was not found but a typewritten document titled "Last Will of T" was found. It was signed by T two years after T said he tore up his will. This will was not witnessed. What happens to T's estate?
|
T's estate is distributed under intestacy because not executed properly and no evidence of intent.
|
|
|
T devised Blackacre to A for elife, then to B for life, then to C. C ran over A and B. What happens to Blackacre?
|
Held for benefit of Agnes's heirs fot the remainder of her actuarial life expectancy, then for Boyd's heirs for the remainder of his actuarial life expectancy, then to Charlotte.
|
|
|
T's will leaves entire estate to cousin A and friend B, in equal shares. Both A and B predecease T. A leaves one daughter, G and B leaves one son, K. Terry's sister S survived T but left nothing under will. Who takes T's estate?
|
Under CL no residue of residue rule, B's share would pass via intestacy. However, UPC 2604 overrules CL rule and provides that a lapsed portion of the residue passes to the other residuary takes. Gina therefore takes all.
|
|
|
H and W are childless couple who own a ranch jointly Nephew Neil stays over and take care of operations. In return, all parties agree in writing to leave farm to Neil after H and W die. W leaves ranch to H, reaminder to Neil. Neil predeceases H and leaves behind his wife and two children. H rewrites will and gives his share of ranch to GF. How much of ranch will N's wife receive?
|
Half. Neil has a vested remainder. The fact that Neil died during U's life estate did not change that. B/c Neil left his estate to his wife, she is entitled to A's one half now that U is deceased. As for other one half, because N and U were related, Neil left descendants, anti-lapse statue would save his interest for his children. Children can make a claim in U's estate for his one half.
|
|
|
T dies, leaving $1 million to cousins and typewritten document tilted "Memo" that says T intends all of assets to be held for her life and then distributed to charity. What arguments could be made successfully on behalf of charity?
|
Memo set up a valid trust for T for life, remainder to Foundation.
|
|
|
S owns and oeprates small farm. Her niece A moved onto the farm and began helping S. Aoffered a lucrative job with a neighbor, so S and A orally agreed that if A stayed S would leave her the farm. S executed a quitclaim deed to A, and put deed in safe deposit box inside a sealed enveloped that said, "to be given to A upon my death. Signed, Sally." S has now died intestate, leaving A and A's five siblings surviving her. How will farm be distributed?
|
To a, b/c of her K w/ Sally. Quitclaim requires delivery.
|
|
|
T executed a will leaving house to niece J and remainder to neighbor. Later, she executed codicil leaving house to her nephew D. She then tore up the will, and then later taped it up. Who gets the house?
|
J. Taping codicil pieces together is insufficient to revive it.
|
|
|
Young woman convinces old man to marry him in Las Vegas. They get married and when old man is really drunk young woman gets old man to sign away his estate to her. Children now contest the will. Who gets old man's estate?
|
Children will argue old man lacked testamentary capacity (not of sound mind b/c he was so drunk).
BUT...no evidence of being that drunk when he was married. (and mental capacity is much lower for marriage). So, young woman will take as surviving spouse. |
|
|
Pattie gets caught up in a cult. She signs her estate away to the cult. What is her family's best argument agianst the will?
|
She was unduly influenced. Family will try to argue cult forced a confidential relationship but this is question. (HAVE TO SHOW CONFIDENTIAL RELATIONSHIP?)
|
|
|
Attorney sets up shop across from retirement home. He writes wills for old people and in return gets half of their estate w/ a no contest clause. Family challenges the will. What should family argue?
|
Tortious interference with expectancy. This is not a direct challenge to the will so no contest clause does NOT apply.
|
|
|
T calls Mrs. Jones Mrs. Sugar and Jones has evidence of this (birthday card). T's will leaves couch to Mrs. Sugar. Does she get the couch?
|
Yes. Plain meaning is general rule, but personal usage exception is allowed. EE (bday card) is allowed.
|
|
|
Rachel executes will "my engagement ring to my sister Monica, if she survives me, everything else to Phoebe." Monica dies, survived by two sons. Rachel dies. Who gets ring.
|
"if she survivies me" does NOT equal express contrary intent. Ring is split between two sons.
|
|
|
Justin leaves his custom made red leather pants to Brittany, but finds out red is out and white is in. He burns the red pants. Does Brittany get anything?
|
ADEMPTION
CL--Irreb presumption of revocation CA: Change in form, not substance. Modern/UPC approach would take the white pants as a substitute. |
|
|
H and W live in CA; H buys Whiteacre and Blackacre w/ his earnings and takes title in his name; we presume this is CP; generally speaking title is irrelevant (thus both acres are CP); Assume H makes will leaving White to close friend and Black to W; assume that each prop is worth 1 mill. What does H and W get?
|
1. H and W own White and black both 50/50; H is trying to give away something he can’t give away; W has undivided ½ interest in each asset; W can contest and retain her ½ interest in White
2. Method to give all of White away to friend a. put condition that all of black goes to W on condition that white goes to special friend b. put W to a choice/election – if W agrees, she gets all of Black and special friend gets white c. you can’t force W (spouse) to do this, but must give her the choice and can do this through economic incentive d. Court generally don’t like these conditional arrangement, thus the will must be explicitly clear on the condition ii. this is not the same as Cl principle of “elective share” |
|
|
H and W in SP jdx and H earned money while resident of this state; they then move to CA and buy home using the money H saved in his name; H leaves this to a friend. If W challenges will, what can she get?
|
a. While domiciled in SP state, H’s earnings are SP and no rights attach until death; so all of the savings by H are SP
i. Domicile at the time of property acquisition – determines property characteristics ii. Domicile at the time of death – determines the spousal protection rights jurisdiction (SP or CP) |
|
|
Ozzie and Sharon are married. He has a life insurance policy that designates Sharon as beneficiary. Thereafter, Ozzie and Sharon develop marital problems and Ozzie moves out. he meets Anna Nicoli and is immediately captivates by her abilities. He properly executes a new will that expressly provides that he leves the proceeds of his life insurance policy to Anna Nicoli, and the rest of his property to his children. Thereafter Ozzie dies. Who takes the proceeds of his life insurance policy?
|
The life insurance policy is a valid will substitute. The general rule is that the beneficiary of a life insurance policy can be changed ONLY in accordance with the terms of the life insurance K. Does not permit change of beneficiary by a properly executed will. SHARON STILL TAKES.
|
|
|
Pete is a single professor who decides to teach out of the country. He puts his colleague's name on the bank account to pay Pete's bills while he is gone. Pete dies in Europe. Who gets his bank account?
|
LOOK AT INTENTIONS: AGENCY, NOT JT. Here, arguably clear and convincing evidence that Pete intended only an agency account, which has no right of survivorship. Money should fall into Pete's probate estate where it will pass to his heirs.
|
|
|
Bubba and Emily own Malibuacres as JT with right of survivorship. Bubba properly executes a valid will that provides in part that he dives his interest in Malibuacres to his mom, Mia, and the rest of his property to his grandmother, Gia. When Bubba dies, who takes his interest n Malibacres?
|
EXECUTING A WILL DOES NOT SEVER A JT. Emily owns it outright!
|
|
|
Bill properly creates an iner vivos trust for the benefit of his inter, Monica. Thereafter, Bill tears up the trust, declaring that he does not want "that woman" to take any of his property. Bill dies. Was the trust properly revoked?
|
Where a trust is silent as to its reocability, the general rule is that the trust is irrevocable (though CA is a notable exception; CA assumes a trust is revocable unless it expressly providers it is irrevocable). Trust doesn't say revocable, so under CA would be revocable!
|
|
|
Sally creates an inter vivos revocable trust and funds it with her house. The trust is for Sally's benefit during her life, and upon her death, property is to go to her dad. Terms of the trust provide that it may be amended or revoked by a writing delivered to the trustee expressing the intent to revoke The trust appoints her sister, Toni,a s trustee. Thereafter Sallys' dad abandons her mom. Sally is livid at her dad and concerned about her mom's financial situation. Sally properly executes a will that expressly provides that she revokes her trust and gives her house to her mom. A few days later. Dally dies unexpectedly in a car crash. Who takes the house?
|
Under the Uniform Trust Code, where the terms of a trust set forth a particular method of revocation, that method is deemed not to be the exclusive method unless the trust expressly so provides. There is no evidence Saly's trust so provided. UTC also authorizes a will executed after the trust, which specifically refers t the trust, to revoke a revocable trust. Sally's will expressed the intent to revoke the trust. Under the UTC, the trust would be revoked and the house goes to Sally's mom.
|
|
|
George W. is the son of a widely respected family. A couple of years ago, the family had W pull all of his principal assets in an inter vivos revocable trust for his benefit during his lifetime and upon his death for the benefit of his parents. W purchase a baseball team. When he applies for the loan, he puts the revocable trust. W dies. Can the bank reach his assets in the inter vivos revocable trust?
|
The modern trend and UTC however provide that where a settlor retains a life estate in hs or her inter vivos revocable trust, such an interest is analogous t one's interest in the rest of one's property. If the settlor could enjoy the benefits of the property during his lifetime, his or her creditors can reach them. The bank could reach his trust.
|
|
|
Jerry executes a will that provides that it leaves all of his property ot the trustee of his trust, to hild and distrubte pursuant ot he terms of thet rust. Thereafter, Jerry has his attorney draw up a trsut instrument for the benefit of Elaine during her lifetme and upon her death the property is to be distributed outright--one half to George the other to Kramer. Jerry executes the trust instrument at his attorney's office, but on his way Jerry is killed. Who takes Jerry's property?
|
ISSUE: IS POUR OVER CLAUSE VALID?
Here validated under revised version of UTATA. (even though not funded inter vivos). Eliane takes a life estate in trust and upon her death property will be distributed outright to George and Kramer equally. |
|
|
Gaucho properly executes a valid will that leaves all of his property to the trustee of his trust, to hold and distribute according to the terms of this trust. A month later, Groucho drafts (but does not sign) a trust instrument that provides the trust is for Harpo's benefit during his life, and upon his death, the principal is split between Chico and Zepppo. A month later, Groucho executes a codicil to his will, changing his executor to Zepo. A month later, Groucho drafts (but does not sign) an amendment ot his trust, giving an outright gift of $100K to Mrs. Claypool. A week late,r Grouchi makes an appoint his his attorney to sign the trust and trust amendment a(and fund it) but he dies. Who takes his property?
|
Under incorporation by reference, will must express intent to incorporate. Here, pour over clause expresses document must be in existence when will was executed. Codcil of the will deemed to reexecute and redate will. By re-dating will trust instrument was in existence so instrument can be incorporated by reference. Trust will be a testamentary trust subject to probate and beneficiary will take property to trust (Claypool takes nothing).
|
|
|
Suzie and Kevin got married and live in Missouri, a non-community property state. Suzy works and Kevin stays at home raising the children. They decide to retire. They have $500K in savings in Suzie's name alone. Kevin dies with a will devising all of her property to charity. State recognizes quasi community property for migrating couples. How much does the American Heart Association take?
|
Quasi-community property gives the surviving Sp community property rights to the deceased Sp's property that would have been characterized as community property if the couple had been domiciled in a CP jx. Kevin has no property in his name. Quasi community property doe snot attach to Suzy's Sp. Charity takes nothing.
|
|
|
Gloria has a will that devises all of her property to NOW. The will includes an express clause disinheriting any future spouses. She married Fred and takes out a million dollar life insurance policy. Is Fred entitled to a share of Gloria's property?
|
If the will expressly provides T is intentionally omitting all future Sp's, this clause overcomes presumption that Sp was omitted accidentally. Fred is barred from claiming Sp's share b/c express general disinheritance clause in the will.
|
|
|
Peter and Carolyn are married with no children. Peter executes a will leaving all of his property to Carolyn. Thereafter, Carolyn gives birth to a child, Chad. Soon after, Peter dies without revising his will. Is Chad entitled to any of Peter's probate property?
|
Chad is not entitled to any of Peter's estate as an omitted child because $$ left to parent of omitted child.
|
|
|
What if in the previous problem, Peter and Carolyn had two children (Ali and Benji) at the time Peter executed his will, and Peter's will left 70% of his estate to Carolyn and the rest to Ali and Benji. Peter and Carolyn had another child, Chad. Is Chad entitled to any of Peter's probate property?
|
Chad is entitled to share of the property being distributed. Omitted child's share is share the child would have received if all omitted after born children are included with the children who are taking under the will. So, Chad would take 1/3 of property being devised. Each child would end up with 10% of estate.
|
|
|
In front of several witnesses, Sally orally tells Bob that she intends to give him her computer next month. A week later, she dies. Bob claims that Sally's statement constitutes a declaration of trust and he is entitled to computer despite her death. Is Bob entitled to computer?
|
NO. Merely a gratuitous promise to make a gift in the future. No express reference to a trust or trustee and focus of statement appears to be in the future, not he present.
|
|
|
In front of several witnesses, Sally declares she hold her computer for Bob's benefit and she will deliver it to him next month. A week later, she dies. Is Bob entitled to her computer?
|
YES.
She express the present intent that she held the property in question for the benefit of another. |
|
|
Charlie's dad gives him $10K. As he hands the money over, he says, "I hope you use this to help the poor of Malibu." Instead, Charlie spends the money on a friend. Has Charlie misused the money?
|
NO. This is a precatory trust.
|
|
|
After long night, Professor Wendel writes his assistant a note that provides, "I want to show my appreciation for your services in helping me finish by contractual obligations to Aspen. I declare you the trustee of the profits of my Wills & Trusts book. If I ever finish writing it, you get 25% of the profits. Prof W dies before book is finished. Is assistant entitled to anything?
|
X
|
|
|
Prof W makes a fortune off of his student study aid. To thank his students, he puts a provision in his will "$100K in trust to my trustee to dist equally among my favorite students." Who takes $100K?
|
NO. No ascertainable beneficiaries.
|
|
|
Michael's will provides that upon his death he leaves $50K to his sister to use to take care of his pet monkey. What is the most likely outcome?
|
X
|
|
|
Lisa is engaged to Nicholas. Transfers her land Blackacre to her friend Michael. Agrees that he will hold the land for five years or following divorce of Nicholas. What is the most likely outcome under the modern trend?
|
Lisa is prob guilty of unclean hands and fraud. If court finds Lisa guilty of unclean hands, Michael will be permitted to keep Blackacre.
|
|
|
Richard learns that he has terminaal cancer. Contacts his good friend, Ian, and asks Ian if he will do him a favor. Richard tells Ian that he wants to leave him $25K to use to take the cast of his last movie to London where they will have a party to celebrate his life. Ian agrees. When Richard dies, his will says "I leave $25K to Ian to use for purpose we agreed upon." Residuary challenges gift. Who takes $25K under modern trend approach?
|
Trust is invalid for want of a written instrument. Court will not distinguish b/w secret and semi secret trusts. Both cases, court grant constructive trust and order property to be distr to intended beneficiaries. That would be case of Richard's last movie.
|
