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62 Cards in this Set
- Front
- Back
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what is a "will contest?"
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an action to prevent a tendered will or to revoke a will that has been admitted to probate.
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Who can contest an admission of will to probate?
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Any "interested person" as defined by PC 48(a)
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When is the deadline for contesting a wlll?
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120 days after admission to probate.
(but someone who was a party or had notice of preprobate challenge may not join) |
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Can a PR appointed under a previous will contest a subsequent will?
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A personal representative appointed under an earlier will admitted to probate has standing to contest a subsequent will, even though he or she has no beneficial interest in the estate, if the testator's wishes may be thwarted by admission of the later wil
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Is an "heir" an "interested person" under PC 48(a)
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Yes, if they will take by intestacy if will is rejected.
(pretermitted heirs don't have standing) |
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Is a beneficiary under a prior will an "interested person"
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Yes, even though they may not be named to receive under subsequent will.
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Can the PR of an estate contest a will?
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yes
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Is a will contest assignable?
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yes, but assignment is disfavored
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Do general creditors have standing to contest a will?
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no, not general creditors.
but yes, perfected judgment creditors. |
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What is a contest called after the will has been admitted to probate?
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A petition to revoke the probate of a will - PC 8270.
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what is a "will contest?"
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an action to prevent a tendered will or to revoke a will that has been admitted to probate.
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Who can contest an admission of will to probate?
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Any "interested person" as defined by PC 48(a)
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When is the deadline for contesting a wlll?
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120 days after admission to probate.
(but someone who was a party or had notice of preprobate challenge may not join) |
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Can a PR appointed under a previous will contest a subsequent will?
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A personal representative appointed under an earlier will admitted to probate has standing to contest a subsequent will, even though he or she has no beneficial interest in the estate, if the testator's wishes may be thwarted by admission of the later wil
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Is an "heir" an "interested person" under PC 48(a)
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Yes, if they will take by intestacy if will is rejected.
(pretermitted heirs don't have standing) |
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Is a beneficiary under a prior will an "interested person"
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Yes, even though they may not be named to receive under subsequent will.
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Can the PR of an estate contest a will?
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yes
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Is a will contest assignable?
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yes, but assignment is disfavored
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Do general creditors have standing to contest a will?
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no, not general creditors.
but yes, perfected judgment creditors. |
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What is a contest called after the will has been admitted to probate?
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A petition to revoke the probate of a will - PC 8270.
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What are the three methods to pursue a will contest?
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Filing an objection to the petition for probate (Prob C §§8004, 8250-8254);
Filing a petition to revoke the probate of the will (Prob C §§8270-8272); and Filing a complaint in intervention under CCP §387. |
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What is the deadline for a proponent of a subsequent will to petition for probate?
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PC 8226
within 120 days of order admitting first will to probate or 60 days after proponent of subsequent will learns of probate of first will whichever is later |
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Is it more desirable to contest a will pre or post probate?
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pre probate
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what are the grounds for contesting a will?
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PC 8252
Lack of due execution (see §26.24); Lack of testamentary intent or capacity to make a will; Undue influence, fraud, menace, or duress; Mistake; Revocation; and Forgery. |
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who has the burden of proof in a will contest?
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Will proponents - execution
Contestants - everything else |
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What are the requirements for execution of a formal will?
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Signed by testator or someone else in presence of testator;
signed by two people during lifetime of testator who witnessed signing of will and understood it was a will |
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Will signatures of witnesses invalidate an otherwise valid holographic will?
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no
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what is the effect of witnesses not signing in accordance with required formalities
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The will can still be valid if proponents prove that it represents testator's wishes by clear and convincing evidence.
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In a contest before probate, who has the burden of proving compliance with will execution requirements?
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the proponent of the will - PC 8252
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In a contest after probate, who has the burden of showing the will is invalid?
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PC 8272
the contestant |
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Are testators presumed to have capacity?
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Yes, PC 810 -- rebuttable presumption of capacity.
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An individual does not have capacity to make a will if ____
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PC 6100.5
if they don't understand nature of testamentary act; don't understand nature and extent of property; don't understand relations to family members and beneficiaries. |
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what is undue influence?
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ndue influence is conduct that subjugates the testator's will to that of another, causing a disposition different from that which the testator would have made if permitted to follow his or her own inclinations
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Can a will be challenged on grounds of mistake?
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yes, 8252(a)
but the whole will can't be declared invalid if there was testamentary intent. |
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What are the two methods of revocing a will?
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By subsequent instrument that revokes the earlier will or part of the earlier will either expressly or by inconsistency (Prob C §6120(a)); or
By mutilation or destruction of the will with the intent and for the purpose of revoking it, by the testator or another person in the testator's presence and at the testator's direction (Prob C §6120(b)). |
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What is the presumption if neither the original nor a duplicate original is found and they last were in possession of testator?
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PC 6124 -- that the testator revoked.
Photocopy is not a duplicate original. |
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Does a revocation of a codicil revoke a will?
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no
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What is the presumption re transfers to certain persons under PC 21380
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presumption of fraud or undue influence.
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who are disqualified persons under PC 21380
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the person who created or transcribed the testamentary document
care custodian of dependent adult (if document was created while services performed or within 90 days) or cohabitants, employees, partners of the above groups |
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what are exceptions to disqualified persons?
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if the testator is related w/in four degrees to disqualified person
or certificate of independent review |
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what is the effect of a transfer to a disqualified person
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person is treated as having predeceased and leaving no issue.
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May the presumption of fraud or undue influence imposed as a result of transfer to a disqualified person be rebutted?
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Yes, by clear and convincing evidence.
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Can a de minimis transfer to a disqualified person be made?
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Yes up to $5K in an estate up to $100K ($150k starting next year)
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The new no-contest law applies to testamentary instruments drafted after _____
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January 1, 2001
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Under the new no contest law, no contest clauses may only be enforced against?
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direct contests without probable cause
challenges to transfers of property on the grounds that it wasn't testator's property -- if such challenges are specifically forbidden; filing or prosecution of creditor's claims on the grounds that it wasn't testator's property -- if such challenges expressly forbidden. |
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what is a direct contest?
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A "direct contest" is a contest alleging the invalidity of an instrument or one or more of its terms, based on one or more of the following grounds (Prob C §21310(b)):
Forgery; Lack of due execution; Lack of capacity; Menace, duress, fraud, or undue influence; Revocation of a will under Prob C §6120, of a trust under Prob C §15401 (trusts), or of another instrument as provided by statute or by the instrument; or Disqualification of a beneficiary under Prob C §6112 or §21380. |
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For instruments executed before 1/1/2001, what may a direct contestant do before filing a contest?
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Petition the court for declaratory relief to ask the court to determine whether the action would be considered a contest (violating no-contest clause)
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Can an attorney and PR be compensated for defending a will contest?
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yes, as extraordinary fees if they actually take part in defense.
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what is the effect of a transfer to a disqualified person
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person is treated as having predeceased and leaving no issue.
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are attorneys fees incurred by beneficiaries deductible from gross estate?
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no
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May the presumption of fraud or undue influence imposed as a result of transfer to a disqualified person be rebutted?
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Yes, by clear and convincing evidence.
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if a client is deceased, who holds the attorney-client privilege
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PR
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Can a de minimis transfer to a disqualified person be made?
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Yes up to $5K in an estate up to $100K ($150k starting next year)
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The new no-contest law applies to testamentary instruments drafted after _____
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January 1, 2001
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Under the new no contest law, no contest clauses may only be enforced against?
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direct contests without probable cause
challenges to transfers of property on the grounds that it wasn't testator's property -- if such challenges are specifically forbidden; filing or prosecution of creditor's claims on the grounds that it wasn't testator's property -- if such challenges expressly forbidden. |
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what is a direct contest?
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A "direct contest" is a contest alleging the invalidity of an instrument or one or more of its terms, based on one or more of the following grounds (Prob C §21310(b)):
Forgery; Lack of due execution; Lack of capacity; Menace, duress, fraud, or undue influence; Revocation of a will under Prob C §6120, of a trust under Prob C §15401 (trusts), or of another instrument as provided by statute or by the instrument; or Disqualification of a beneficiary under Prob C §6112 or §21380. |
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For instruments executed before 1/1/2001, what may a direct contestant do before filing a contest?
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Petition the court for declaratory relief to ask the court to determine whether the action would be considered a contest (violating no-contest clause)
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Can an attorney and PR be compensated for defending a will contest?
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yes, as extraordinary fees if they actually take part in defense.
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are attorneys fees incurred by beneficiaries deductible from gross estate?
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no
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if a client is deceased, who holds the attorney-client privilege
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PR
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what are the exceptions to attorney-client privilege in the context of will contests?
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competence of client
deceased client's intention with respect to property validity of a deed or writing |
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what is the attorney's work product privilege
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attorney has a privilege to his work product and notes
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