Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/273

Click to flip

273 Cards in this Set

  • Front
  • Back
Terms and Definitions:

in CA "Issue" means all linear descendants
Issue
terms and definitions:

i. Die w/out a will
ii. Portion of the will or all of the will is invalid
iii. Statute of decent and distribution
1. Personal property – goes to next of kin – distributes
2. Real property – goes to heirs – descends to heirs
iv. Administrator/Administratrix is the appointed representative
1. Role is to answer to the probate ct.
intestacy
terms and definitions:

Die w/ a valid will
testate
terms and definitions:

personally appointed to oversee the dead persons affairs. Inventory the assets, manage the assets during administration, receive pay creditor’s claims like taxes, use a clear titlte to the property, distribute remaining assets.
personal representative
terms and definitions:

executes the will. If there is no will then the personal representative that does the estate is the administrator.
executor
terms and definitions:

any amendment to a will. A document which in and of itself adds, supplements, subtracts, alters, or revokes provisions in an existing will
codicil
terms and definitions:

way to pass along property w/out going through probate
i. Trusts, IRA’s, Life insurance
will substitute
terms and definitions:

petition to a court to review a will
i. Functions of probate: Gathering assets; paying off creditors; distributing assets Clearing title
probate
terms and definitions:

person that dies leaving a will
testator
terms and definitions:

gift of real estate
devise
terms and definitions:

person receiving the devise
devisee
terms and definitions:

gift of personal property
Bequest or legacy
terms and definitions:

person receiving the bequest
legatee
terms and definitions:

i. is all property acquired by married people during marriage while living in the state and property acquired by the married couple while living in another jurisdiction--the Exception is real property (for real property to be treated as community property it has to be located in the state)
community property
terms and definitions:

i. If living in a state that doesn’t have a community property system and buy something then move to a community property state and die-then personal property will be considered community property (Exception if own real property located out of state-then law of state where property located will apply)
quasi community property
terms and definitions:

i. any property not community property or quasi community property is separate property (anything not bought by married people within the state--Ex. stuff bought before married)
seperate property
terms and definitions:

i. Ex. the person's who would be the heirs of A (if A died) are not the heirs of A--they are the heirs apparent
heirs apparent
terms and definitions:

i. Statute of Uses – precursor to modern law of trusts. Did not allow the devise of land.
ii. Statute of Wills – Modern law of wills, allows the devise of real property.
1. Required a writing, but no signature or witness.
american probate law
into to estate planning:

i. Shapira v. Union National Bank - A father conditioned his son receiving his inheritance on the son marrying a jewish girl whose both parents are jewish. Son contested the will claiming it was Unconstitutional (viol the 14th amend), was contrary to public policy, and unreasonable. Ct held for D, NO constitutional right to marry or right to receive property from someone when they die. Here the sons right to marry was not being interfered with—he could marry anyone he wanted, but if he didn’t marry a Jewish girl then no inheritance. Conditioning inheritance on marriage is OK, but cannot condition inheritance on getting a divorce. Rule: A restraint to induce a person to marry within a religious faith is valid if, and only if, under the circumstances, the restraint does not unreasonably limit the transferee's opportunity to marry
the power to transmit property at death
intro to estate planning:

1. Ct will consider societal interests when deciding whether to enforce the destruction of property designated in a will and courts usually will not uphold conditions to detroy property in a will, but they will do a balancing test:
a. Weighs the dead guys interest in having the property destroyed
b. Against societies interest in the property.
destruction of your property after death
Into to Estate Planning:

is a ct proceeding that administers assets by one of 2 means:
1. Will; or
2. Intestate (a default scheme-statute decides how property will be distributed)
probate
intro to estate planning:

1. Collect and Distribute property
It distributes the decedents property to those intended after creditors are paid
2. Protects Creditors (by requiring payment of debts)
3. Clear Title (It provides evidence of transfer of title to new owners)
3 main functions of probate
intro to estate planning:

applies to property that has passed under an instrument other than a will, which became effective before death
Non probate
intro estate planning:

1. Property held in joint tenancy
a. when one owner dies the other becomes the owner of the
whole property---only need a death certificate to prove this
2. Life insurance
a. a private contract to pay money to someone else when you die
3. Contract to Pay On Death (P.O.D.) Provisions
a. IRA's or pensions
4. Trusts
a. an arrangement whereby property is transferred to a trustee
who holds legal title for a beneficiary who has equitable title
b. This is classified as an inter vivos transfer b/c you transferred
the property while you were alive--so no probate is needed
Non- Probate: 4 principal Categories
intro to estate planning:

after probate is opened
Non Probate:

Probate Procedure
intro to estate planning:

a. If will names the representative they are called an Executor
b. Is not named in will, then called an Administrator
i. Administrator must post a bond (but will can waive the requirement of a bond)
ii. Personal representatives are appointed by, under the control of, and accountable to a court (ct supervision)
Non Probate: Probate Procedure

First you have a personal representative appointed to oversee the winding up of the decedent's affairs.
intro estate planning:

a. Inventory assets (stocks, bonds, real estate) and debts (creditors)
b. Receive claims from creditors(waiting period to protect creditors)
i. will sell assets to get cash to pay debts
ii. pays taxes
c. Provide evidence of transfer of title to the new owners
i. clear title so it can be transferred
D. Distribute whatever's left of decedents property to those intended.
Non Probate: Probate Procedure:

representative responsibilities
intro to estate planning:

a. Formal is judicial determination after notice to interested parties
b. Informal does not require notice to interested parties
c. No proceeding formal or informal may be initiated more than 3yrs from the date of death. If a will is not probated within 3yrs after death-the presumption if intestacy is conclusive
Non Probate: Probate Procedure:

Formal and Informal Probate
Intro to Estate Planning:

a. Statutory period which creditors must make claims or else be barred for waiting to long
b. Some state have a Family Protection Statute which sets aside a certain amount of cash, house or both-so creditors cant touch it
Non Probate: Probate Procedure:

Non Claim Statutes
intro to estate planning:

i. Simpson v. Calivas: P is the beneficiary of his fathers will that D (atty) was hired to draft. P is suing for malpractice. Was the life estate for step mom just the house or all the decedents land and buildings used in the family business? CT held for P, A duty runs from a drafting atty to an intended beneficiary of a will (an identified beneficiary has 3rd party beneficiary status). Ct finds an exception to the privity of contract rule-if there is a foreseeability of injury to the intended beneficiary. An intended beneficiary states a cause of action simply by pleading sufficient facts to establish that an atty has negligently failed to effectuate the testators intent as expressed to the atty.
Professional Responsibility
Intro to estate planning:

ii. Hotz v. Minyard: D’s father (owned 2 car dealerships) had a will drawn up. The father later went back and had a 2nd will drafted. D also used the same lawyer for her own purposes –she asked about the will but L only showed 1st will and never mentioned the 2nd will. Ct held for D, because L breached a fiduciary duty to D (a duty to not actively misrepresent the truth to his client). D is saying regardless of what my dad wanted L had a duty to look out for my best interests-there was a conflict of interests L could not represent both effectively
Professional Responsibility case law
intro to estate planning:

1. “Pay off just debts” is not specific-does this include a mortgage—if yes then the estate must pay off the mortgage before dividing any property
2. have a back up executor if 1st one dies
3. address whether Administrator must post a bond
4. specify who is to raise children if parents die—and another back up if specified person dies.
estate planning dilemmas: be specific regarding what you want to happen
Intestate Succession:

Whenever a person does not make a Will or dispose of all of their property by Non-Probate Transfers they are accepting intestacy laws as their estate plan.
1. No will
2. Partial or total will failure (if have a will, but it is invalid)
Intestate
intestate succession:

to carry out the probable intent of the parties
intesate public policy
intestate succession:

(personal property follows the person, real property does not)
1. - Follow the law of the state which the decedent was domiciled at death
2. Personal Property: the law of the state where decedent was domiciled at death will govern the distribution of his personal property.
3. Real Property: the law of the state where the land is located governs
intestacy general rule
intestate succession:

if will doesn’t govern all the property you have when you die
partial intestatcy
intestate succession:

1. Surviving Spouse
2. If no spouse then to Issue (children)
3. If no issue then to Parents
4. If no parents then issue of parents (siblings)
5. If no issue of parents then to grandparents
6. If no grandparents then to issue of grandparents (aunts, uncles, cousins)
7. If no issue of grandparents then to Issue of predeceased spouse (step-kids
8. If no issue of predeceased spouse then to Next of kin (collateral relatives-someone related through GP’s)
9. In no next of kin then to parents of predeceased spouse (in-laws)
10. If no parents of predeceased spouse then to Issue of parents of predeceased spouse (brother in law )
11. Then to state
priority distribution guidelines
intestate succession:

(tells you what percentage of the pie an individual in a class above gets
moder per stirpes
intestate succession:

i. Find the first generation that has a living member in it
ii. Divide the property up into as many shares as there are in that generation
1. Living members; or
2. Deceased members leaving surviving issue
iii. Living members of that generation take their share and issue of deceased members take their share by right of representation in the same manner
*CPC 240 applies when there are heirs of unequal degree (NOT applicable
to next of kin distribution)
*ONLY applies to SEPARATE property
iv. CA follows a combination of modern and per capita
v. Half Bloods
1. How much of the same blood does a relative need to share with you? a half blood is treated the same as whole blood relative
moder per stirpes 3 steps
intestate succession:

1. Then the spouse inherits the other half of the decedents community property
2. If One Child or issue of a child: then wife gets 50% of separate property and issue gets the other 50% -6401(c)(1)
3. If no issue, parents, siblings, or issue of siblings (decendents, nieces, grandchildren, great grandchildren): then wife gets 100% of separate property as well
4. If a parent or issue of sibling survives: then wife gets 50% of separate property and the parent or issue of sibling gets the other half -6401(c)(2).
5. Wife does not have to share with anyone outside the issue.
share of surviving spouse:

if spouse dies intestate
intestate succession:

(If 2 people die in the same incident how do you prove who survived who)
share of surviving spouse:

simultaneous death
intestate succession:

1. A person succeeds to the property of an intestate or testate decedent only if the person survives the decedent for an instant of time.
share of surviving spouse:

simultaneous death
intestate succession:

Ct held for D, because there was sufficient medical evidence to show that S died 3 days before T. Only had to show by preponderance of the evidence (any evid indicating she survived).
simultaneous death:

evidence that one spouse outlived the other
intestate succession:

Unless it is CLEAR that one spouse predeceased the other--then the Default Rule is that each spouse predeceased the other—so each spouses heirs will get their portion of the property
simultaneous death
intestate succession:

(applies to comm. prop and quasi comm.. prop)
a. Must show clear and convincing evidence that one spouse survived the other
b. If not—then property distributed as if each spouse predeceased the other (the wife’s side will get her half and husband’s side gets his half of all property).
c. Under CPC 224 same rule applies to Life Ins. or Accident Ins. policies
d. Under CPC 6403- if spouse fails to survive for 120 hours (5 days) then deemed to have predeceased the other spouse (must prove by clear and convincing evidence)
simultaneous death, CAlifornia Law
intestate succession:

1. Ancestors – parents
2. Collateral kindred (next of kin)– all persons related by blood to the decedent but who are not descendants or ancestors-(these are collateral relatives--more distant than GP's or GP's issue)
3. Laughing heirs – persons so distantly related to the decedent as to suffer no sense of bereavement.
shares of ancestors and collaterals:

Relatives
intestate succession:

1. Using the table of consanguinity you count steps up from the decedent to the nearest common ancestor of the decedent and the claimant and then count the steps down to the claimant. The total number of steps is the degree.
2. CA uses this method.
3. In the case of a tie the closest parentela would take the entire portion. Under a will later parentela do not have standing to contest if sooner ones are alive.
shares of ancestors and collaterals:

Degree of Relationship
Intestate Succession:

1. Find out who is the lowest number of degrees away from the person who died (see chart p79)
2. If you have 2 relatives that are next of kin -the one who is more related takes to the exclusion of the other
a. Ex. The grandchild of your great grandparents or the grandchild of your great-great grandparents---who takes? the grandchild of great grandparents
shares of ancestors and collaterals:

Rules that apply to next of kin
intestate succession:

3. If a tie-breaker between next of kin--whoever is related by a closer ancestor takes
a. Ex. grandchild of great grandparents takes over child of great grandparents (a great aunt/uncle)
b. BUT if equal degrees away and equal degrees through common ancestors --then split evenly
i. Ex. child of G-Grandparents on mothers side and child of G-Grandparents on fathers side-- who takes?
shares of ancestors and collaterals:

Rules that apply to next of kin
intestate succession:

1. A will cannot state so and so receives nothing, violates statutes. Must distribute entire estate to others to disinherit. If portion of will invalid or entire will then person may be able to receive by intestacy.
shares of ancestors and collaterls:

Negative disinheritment
intestate succession:

a. Child that is born after the death of the father inherits (if child conceived before father dies then they inherit)
b. CA presumes that the child is legitimate heir if born within 280 days. This is a rebuttable presumption.
transfers to children: posthumous children:

Child conceived before death of father
intestate succession:

a. Ex. H freezes his sperm and dies then W uses sperm to have child (ct says there is a problem of whether they wanted you to take from their estate)
i. CPC 6453 says we know you inherit from your natural parent (but how do we determine who your actual parent is--did he acknowledge you as a child, DNA test)
ii. CPC 6453(3) if you can establish:
1. H left sperm and only W had right to use it to conceive child
2. and H writes out that he wants child conceived after he dies to inherit-then ct says ok
transfers to children; posthumous children:

child conceieved after death of father
intestate succession:

1. CA adoption severs the relationship between the adopted child and the natural parent but creates a relationship with the adopted parents and the child. There are exceptions.
transfers to children:

adopted chldiren
intestate succession:

under CA law adopted children are allowed to inherit from natural parents family if:
i. They lived with the parent at some time before he died (Ex before they were adopted)--6451(a)(1)
ii. They would have lived with the parent but natural parent died before they had a chance (before they were born) --6451(a)(1)
iii. Adoption is by a spouse of either natural parent (step-parent adoption)—6451(a)(2)
iv. Adoption occurs after the death of either natural parent --6451(a)(2)
transfers to children:

adopted children exceptoins
intestate successoins:

2. CA allows for adoption of an adult, this can be secret and do not have to live w/ the adopter
transfers to children:

adopted children exceptoins
intestate succession:

3. Hall v. Vallandingham: Facts: After Earl dies, his children were adopted by Kilgore, his ex-wife’s new husband. Earl’s brother dies and he is childless and unmarried, and died intestate. The issue is whether the adopted children of Earl can get their share through their natural father even though they have been adopted by another father? Rule: B/c an adoptive child has no right to inherit from the estate of a natural parent who dies intestate--it follows that the same child may not inherit through the natural parent by way of representation
transfers to children:

adopted children case law
intestate succession:

a. if adopted child dies without issue then adoptive parents inherit
i. natural parents (that gave child up) are cut off
ii. but natural parent who is the spouse of adoptive parent and raising child can inherit
b. if adoptive parents are dead then issue of adoptive parents inherit
c. If adoptive child can inherit from natural parents or relatives THEN his whole blooded siblings can inherit from him (they have to split evenly with adopted siblings)
transfers to children:

who inherits from adopted children
1. Although half bloods are treated as whole bloods under intestacy-Under adoption they are NOT treated as whole bloods
transfers to children:

who inherits from adopted children: exceptoin
intestate successsion:

5. Minary v Citizens Fidelity Bank & Trust Co: Husband adopted Wife so she would be able to inherit under the provisions of his mothers will, but bank refused. Ct held the adoption of an adult for the purpose of bringing that person under the provisions of a preexisting testamentary instrument when they clearly were not intended to be covered--should not be permitted. You can adopt an adult person, but ct narrows this view to NOT include adoption of a spouse
transfers to children:

adopted children case law
intestate succession:

1. If natural parents agreed to give up custody-so child will be treated as an heir of a person when they die, but that person never adopts the child--then the court will treat it as an implied contract and equitably enforce to the child claim to the third party estate (with child as a 3rd party beneficiary).
transfers to children:

Equitable adoption
intestate successoin:

1. When determining intestate succession the relationship of parent and child exists between a person and the person's foster parent or stepparent if BOTH of the following requirements are satisfied:
a. The relationship began during the person's minority and continued throughout the joint lifetimes of the person and the person's foster parent or stepparent.
i. Ex. So if mom remarries when she is 60 and already had a 35yr old child-then the child will NOT inherit-but if child was 7yrs old then he can inherit
b. It is established by clear and convincing evidence that the foster parent or stepparent would have adopted the person but for a legal barrier.
i. Ex. If H2 wants to adopt child but H1 refuses to allow it
1. But H2 must adopt child when he turns 18 if H2 wants child to inherit from him--b/c there will no longer be legal barrier preventing him from adopting the child (he is 18)
Foster Parents/Step Parents
intestate succession:

1. A child born out of wedlock is filus nullius, child of no one.
non marital children
intestate succession:

a. When a natural parent and child relationship is established and not rebutted
b. A court order was entered during the father's lifetime declaring paternity.
c. Paternity is established by clear and convincing evidence that the father has openly held out the child as his own.
d. It was impossible for the father to hold out the child as his own and paternity is established by clear and convincing evidence.
non marital children:

CAlifornia Law says when child can inherit from a natural parent
intestate succession:

a. If a child is born out of wedlock, neither a natural parent nor a relative of that parent can inherit from the child on the basis of a parent and child relationship unless both of the following requirements are satisfied:
i. The parent or a relative of the parent acknowledged the child.
ii. The parent or a relative of the parent contributed to the support or the care of the child.
non marital children:

CA 6452: When a natural parent can inherit from out of wedlock child
intestate succession:

Any lifetime inter vivos gift made w/ the intent that it constitute and advance of the intestate share.
advancements
intestate succession:

a. Any lifetime gift to a child was an advancement (a prepayment of the child's intestate share) To avoid this a child had the burden of proving the lifetime transfer was an absolute gift that was NOT to be counted against the childs share of the estate
b. Presumption is that the parent would want a true equal distribution of property between his children and this can only occur if lifetime gifts are taken into account when determining equal shares
advancements at common law
intestate succession:

a. When you give gifts to your kids it will NOT count against their intestate share
b. It will be treated as an advancement only if:
i. The decedent declares in a contemporaneous writing that the gift is an advancement (to prevent parent from later getting mad at the child and declaring it an advancement)
ii. Heir acknowledges in writing it was an advancement
c. Value of Property advanced is based on:
i. when heir obtained it
ii. value indicated in a writing of decedent or acknowledgment of the heir
d. If recipient predeceases: advancement is NOT taken into account when computing intestate share of recipients issue
advancements: CA Law reverses the common law presumption
intestate successoin:

a. Used when there is an advancement and the recipient survives the decedent. You add the assets of what is left to the advancement to create a total (Assets + Advancement = total, then divide by number of heirs)
i. Ex. A got $10 as an advancement. Father dies leaving 3 kids and $50 in estate. So Pot is now $60 (add the $10 to the $50). B gets $20, C gets $20, A gets $10 (A has already received $10 so she only gets an additional $10)\
advancements:

Hotchpot
intestate succession:

i. If parents die without appointing a guardian for the child
1. – ct will appoint a guardian of the person from among the nearest relatives
2. this person might not be the one the parents would want to have custody of the child
ii. A guardian of the person decides:
1. Where the minor lives
2. How the minor is raised and educated
3. And when the minor receives medical care
iii. A guardian of the person terminates when:
1. the child reaches majority
2. Dies before becoming an adult
3. Or is adopted
managing a minors property:

Guardian of Person
intestate succession:

1. – ct will appoint a guardian of the person from among the nearest relatives
2. this person might not be the one the parents would want to have custody of the child
manaing a minors property:

Guardian of Person: if parents die without appointing a guardian for the child
intestate succession:

1. Where the minor lives
2. How the minor is raised and educated
3. And when the minor receives medical care
managing a minors property:

guardian of person:

a guardian of the person decides
intestate succession:

1. the child reaches majority
2. Dies before becoming an adult
3. Or is adopted
managing a minors property:

guardian of person:

A guardian of the person terminates when
intestate succession:

1. G cannot change investments without a ct. order
2. G has a duty to preserve property for minor and deliver it to him when he turns 18
managing a minors property:

guardian of property: guardian does not have title to the wards property
intestate successoin:

1. G CANNOT use principal to support ward without ct approval
2. ward often ends up with less property at the end of the guardianship (b/c ct supervision of the guardian is time consuming and burdensome--each trip to court costs money (atty's fees and court costs)
managing minors property:

guardian fo peropty: guardian can only use income from the peorpty to support the ward
intestate succession:

c. Natural parents are the only ones that can appoint a guardian
d. Ct will appoint G if the parents do not designate (in the best interest of the child). If child over 12 will ask the child.
managing a minors property:
intestate succession:

a. CA this is for an incapacitated individual (minors).
b. Guardian is named conservator and given legal title to minors property as trustee
c. Appointment and supervision by a court are still required
i. But conservator has more flexible powers than a guardian
1. Only one trip to the courthouse, annually, for an accounting may be necessary
2. More flexibility in investments
d. Conservatorship terminates when minor reaches the age of majority or dies before then
manaing a minors property:

conservatorship
intestate succession:

i. The Uniform Transfer to Minors Act (UTMA) -CA adopted this
ii. Or its predecessor --The Uniform Gifts to Minors Act
maning a minors property:

Custodianship: custodian is given property to hold for hte benefit of a minor under either
intestate succession:

i. Can expend property available for the use and benefit of the minor--without a court order
ii. And without regard to
1. The duty or ability of any other person to support the minor
2. Any other income or property that may be available to the minor
c. Custodian is a fiduciary and is subject to "the standard of care that would be observed by a prudent person dealing with property of another
managing minors property:

custodianship:

custodian has discretionary power to manage the property nad re-invest it
intestate succession:

i. No accounting to the court annually or at the end of the custodianship is required (but an interested party may inquire if they wish)
managing a minors property:

custodianship; custodian is not under hte supervision of a court
intestate succession:

e. Can be used up to age of 25, but usually ends at 18 unless specified
f. potential for abuse
managing minors property

custodianship
intestate succession:

(most flexible of all property arrangements)
managing minors property:

trusteeship
intestate succession:

a. Testator can tailor trust specifically to family circumstances and testators particular desires
b. Under a guardianship or conservatorship the Child must receive property at age 18--BUT a trust can postpone possession of property until the donor thinks the child is competent to manage the property.
c. A "contingent trust" applies to any minor beneficiary (Ex. If the named adult beneficiary predeceases the testator--leaving minor children as contingent or subsequent takers)
d. Trustee must account annually, if it is a minor they must do so to the ct.
managing a minors property:

trstueeship
intestate succession:

applies both to testate and intestate
1. Policy is that do not want the killer to profit from his crime
2. It only bars the succession of property that the killer would have gotten but for the death of the victim.
3. Joint Tenant Slayer: CPC 251 says a joint tenant who intentionally kills another joint tenant severs any right of survivorship interest in the decedents property --the property passes to the decedent's heirs
4. Life Insurance Policy/Bond: CPC 252 a beneficiary that intentionally kills is not entitled to any benefit of insurance policy or bond—policy is paid out as if slayer predeceased decedent
5. Killing someone is not the only way you can lose out on property --if you mistreat a vulnerable old person ct will not allow you to inherit form them. Ct will assume they only gave you the money b/c you were beating them up (that they were coerced into giving it)
bars to successoin:

homicide
intestate succession:

1. Intestate – under this a successor cannot prevent title from passing to him. Person must renounce then title is passed on to the next intestate successor.
2. Testate – The devisee can refuse to accept the devise, thereby preventing title from passing to the devisee.
bars to succession:

disclaimer
will capacity:


1. Testator must be an adult (18yrs old) --statute 6100
2. Testator must have mental capacity regarding:
a. The nature and extent of his property
b. The natural objects of his bounty (his family heirs)
c. The disposition that Testator is making of that property
d. And be capable of relating these elements to one another to determine how to dispose of the property
**Note:
1. The test is one of capability and NOT one of actual knowledge
(if test was actual knowledge then a reasonable mistake
regarding whether one of your children was alive would render
you mentally incompetent).
2. No requirement that testator be of average intelligence
capcity:

Test to determine if testator is competent to make a will
will capacity:

1. Will should be valid only if it represents T’s true desire of distribution
2. A mentally incompetent man is not defined as a person
3. Law requires mental capacity to protect the decedents family (protect their inheritance-gives incentive to care for testator)
4. Public acceptance of laws rests upon a belief that legal institutions, including inheritance, are legitimate, and legitimacy cannot exist unless decisions are reasoned (only want rational actors making wills)
5. Protects a sane person should they later become insane (Mental capacity assures a sane person that the disposition the person desires will be carried out even if the person later becomes insane and makes another will)
6. Mental capacity may protect society at large from irrational acts.
7. Mental capacity may protect a senile or incompetent testator from exploitation by cunning persons.
capacity:

why require mental capacity
will capacity:

iii. In re Estate of Wright: Daughter is contesting will of her father claiming he was of unsound mind when he signed the will (if she can get will to be held invalid then his estate will be distributed intestate and she will get more). Ct said to prove someone is of unsound mind:-you must show more than a few isolated acts (There is a difference to being screwy and being medically of unsound mind) The legal presumption is always in favor of sanity
capacity case law
will capacity:

iv. In re Strittmater (mental capacity / insane delusion case): The will is being challenged claiming the testatrix was insane. Strange writings that men were the devil were used to show she was insane. Ct held she was insane and the will was invalid. Ct said a will that is the product of the testators insanity is NOT valid However it is possible to have lucid intervals where it is ok to make a will.
capacity case law
will capacity:

1. Person that takes care of someone that is physically or mentally incapacitated. If a person has one appointed there is a rebuttable presumption that they lack capacity.
will capacity; conservatorship
will capacity:

a belief not susceptible to correction by presenting the testator with evidence indicating the falsity of the belief
capacity:

insane delusion
will capacity:

a mistake is susceptible to correction if the testator is told the truth (cts do not invalidate wills b/c of a mistake-but this is changing)
capacity:

insane dilution
will capacity:

An insane delusion which impairs the testators testamentary capacity is one to which the testator adheres to against all evidence and reason to the contrary.
capacity:

insane dilution majority rule
will capacity:

Allows for the probate of a will while the testator is alive. An adversary proceeding is brought while the testator is alive to determine capacity and the validity of the will.
capacity:

insane dilutoin: living probate
will capacity:

i. To have undue influence in the eyes of the law there must be coercion. When person is coerced into doing something, which he does not desire to do, that is undue influence.
undue influence
will capacity:

1. The testator was susceptible to undue influence
2. That the influencer had the disposition or motive to exercise undue influence
3. That the influencer had the opportunity to exercise undue influence
4. That the disposition is the result of the influence (received the bulk of the estate)
undue influence:

CA law to establish undue influence
will capacity:

1. a grantee can prove this by showing clear and convincing evidence that he acted in good faith and the grantor acted freely, intelligently, and voluntarily.
2. Grantee DOES NOT have to disprove all the elements of undue influence are false—he only have to prove the ultimate issue: that the will is free of such influence
undue influence:

If the presumption is satisfied then the burden shifts back to the proponents of will to negate undue influence
will capacity:

has the burden of proving its validity---which is usually easily done by showing due execution
undue influence:

the proponents of a will
will capacity:

has the burden of proving undue influence directly or by proving facts that would give rise to a presumption of undue influence.
undue influence:

the person contesting a will
will capacity:

vi. If a part of will is the product of undue influence, those portions will be stricken and the remainder of the will may stand as valid if it can do so w/out defeating the testator’s intent.
undue influence
will capacity:

The test of undue influence is whether enough control was exercised over the mind of the testatrix to overcome her free will, causing testatrix to make a donative transfer that would not have otherwise been made
undue influence test
will capacity:

viii. In re Will of Moses: The deceased had an atty draft her will leaving a large portion of her estate to her lover who was also an atty (also handled legal matters for her-but not this will). Her sister contested the will claiming UI. Rule: where a confidential relationship between testatrix and devisee creates suspicious circumstances, a presumption of undue influence arises. Ct held for sister, b/c independent counsel only wrote what she told him to write, there was no informed decision (he didn’t consult her regarding her decision to leave her property to a non-blood over a blood–relative)
undue influence case law
will capacity:

ix. In re Kaufmann: K (a heir to Kay Jewelers) moved from DC to NY to be gay. Lived w/ his lover and lover ran the household (paid bills and handled affairs). Ct held for family as the Ct claimed UI on behalf of the lover as K was easily taken advantage of. Ct used its power to enforce social norms (anti gay)
undue influence case law
will capacity:

i. Says a beneficiary who contests the will shall take nothing, or a token amount, in lieu of the provisions made for the beneficiary in the will. no contest clauses are disfavored
no contest clauses
will capacity:

ii. CA provides a procedure for a declaratory judgment that a particular suit will thwart the intention of the testator and trigger a no-contest clause, which will be strictly enforced.
1. What is the problem with this: if you are not getting anything anyway then individual will contest it (so lawyers will recommend giving just enough (a token amount) so an individual will think twice about challenging the will b/c they don’t want to lose what they have actually been given in the will.
no contest clauses
will capacity:

iii. CPC Sec 21300 –no contest statute
iv. CPC 21302: says this is non-waiveable you cannot contract around this
v. CPC 21303 -A no contest clause is enforceable. They will be strictly construed
no contest clauses
will capacity:

vi. The legislature had to balance the following concerns:
1. clause discourages litigation
2. On the other hand they might also discourage legitimate challenges
no contest clauese
will capacity:

1. Ex. I'm not saying I am challenging your will I am just saying I don’t understand what your will means--not deemed a contest of the will
2. Saying the document doesn’t reflect intent of T b/c of a minor mistake (Ex address is wrong on house left to you)
3. Challenging a will claiming it is a forgery or that it was revoked--as long as you have reasonable cause—then doesn’t viol. no-contest clause.
no contest clauses:

not held to violate no contest clauses
will capacity:

1. The person who drafted the instrument.
2. A blood relative, spouse, domestic partner, roommate, co-habitant or employee of the drafter business partner of the drafter
3. Any person who has a fiduciary relationship with the transferor (atty, conservator or trustee)
4. A care custodian of a dependent adult who is the transferor (somebody taking care of a dependent adult)
**Drafters, fiduciaries, care custodians (and anyone who has a association with one of these people)
**Cannot be rebutted by Clear and Convincing evidence-you lose out UNLESS you fall into a category below
prohibited transferees:

4 categories of people where if you make a gift to these poeple it is not valid because of a presumption of UI
will capacity:

1. Transferor is related by blood or marriage (Ex son drafted the will)
2. If instrument is reviewed by an independent atty who counsels the individual and concludes the gift is not due to UI, fraud, or duress.
3. After full disclosure (even if an independent attorney doesn’t review it -if a judge does then that will suffice)
4. Other ways you can get around this:
a. if transfer doesn’t exceed $3,000 (a tiny gift)
b. if the only connection you have to CA is that you died here and the will was signed in another state where this was Ok --then CA says we wont get involved
probited transferees:

exceptions to 21350
will capacity:

1. Bequest to an attorney
a. CA says when an attorney drafts a will and receives a gift from the will, Purging Statute will apply to purge gift if drafter does not fit into an exception (how drafter fights purging statute)
i. blood relative
ii. ct approval
b. Purging Statute: saves a will by declaring that the interest of the attesting witness is void
probited transferees:

interested drafters
will capacity:

1. when an interested witness beneficiary receives a gift from a will a rebuttable presumption of UI arises, which can be rebutted by a preponderance of the evidence.
2. If it is not rebutted then the devise fails except for the portion of the will that P would not have received had the will not been created
a. Ex T devised A $100 in will 1 (with B and C witnessing). T then made will 2 devising A $200 (with A and B witnessing). A will only get what he would have gotten under will 1.
prohibited transferees:

interested witnesses
will capacity:

i. Fraud occurs where the testator is deceived by a misrepresentation and does that which the testator would not have done had the misrep not been made.
1. a provision in a will procured by fraud is invalid
2. the remaining portions of the will stand UNLESS:
a. the fraud goes to the entire will OR
b. the portions invalidated by fraud are inseparable from the rest of the will.
fraud
will capacity:

1. Misrepresentation must be made with an intent to deceive the testator
2. AND the misrepresentation must have been made to influence the disposition of the will
there are 2 elements of fraud
will capacity:

– a person misrepresents facts so T will execute a will in their favor OR refrain from executing or revoking a will Ex. tell T that son is dead so they get more in the will. Can invalidate all or a portion of the will
a. On final-make arguments on both sides
i. don’t just say it was fraud (say she lied)
ii. but also say she didn’t say it to influence the will
iii. then rebut –argue then why else did she say it
fraud in the inducement
will capacity:

occurs when a person misrepresents the character or contents of the instrument signed by the testator. This invalidates the entire will
fraud in the execution
will capacity:

iv. Estate of Carson (Fraud in the Inducement case): Alpha Carson married J. Gamble and lived with him for a year before her death--later it was determined Alpha was seduced by Gamble and the marriage was no marriage in the eyes of the law b/c he had one or more spouses, legal and illegal, who were still living. ct said it was a question for the jury to determine whether the wife had been deceived / induced (did the lie cause her to give him the property).
fraud case law
will capacity:

v. Puckett v Krida (Fraud in the Execution case): Nurses were hired to provide round-the-clock care for testator-they persuaded T that her relatives were wasting her money and wanted to put her in a nursing home to get her money. ct held nurses guilty of fraud and undue influence—they had a confidential relationship with T as her nurse and power of atty. Factors ct looked at when it made its decision: niece kept meticulous records of her care and could document all the expenses and rebut the nurses accusations and nurses did not keep records of where money was spent
fraud case law
will capacity:

vi. Latham v. Father Divine (fraud / duress case): P is the first cousin of Mary Lyon, who left a large percentage of her estate to D, the leader of a cult. P asserts UI, fraud, duress. ML wanted to draft new will and D did not allow her to. Ct held for P, ct invalidated the portion to D and had D hold in constructive trust to avoid intestacy. Rule: Where a devisee under a will already executed prevents the testator by fraud from revoking a will and executing a new will in favor of another, so that the testator dies leaving the original will in force, the devisee holds the property thus acquired upon a constructive trust for the intended devisee (who T would have given the $ to if allowed to change will)
fraud case law
will capacity:

1. The intentional interference with an expected inheritance or gift as a valid COA. P must prove that the interference involved conduct tortuous in itself (such as fraud, duress, undue influence). The theory CANNOT be used when the challenge is based on the testators mental capacity
fraud:

tortious intereference with expectancy
will capacity:

An action for tortious interference with an expectancy is NOT a will contest. It does not challenge the probate or validity of a will but rather seeks to recover tort damages from a 3rd party for tortious interference (you failed to get the benefit you would have gotten)
fraud;

tortious intereference with expectancy
will capacity:

3. The will goes through probate after which a tort claim is raised seeking punitive damages. Must prove fraud by clear and convincing evidence.
a. tort statute of limitations starts running on the action at the time the P discovered or should have discovered the fraud or undue influence (the action is NOT subject to the short SOL on will contests).
fraud: tortious interefeence with expectancy
will capacity:

4. Since a suit for tortious interference with an expectancy is NOT a will contest, a no-contest clause does not apply to such a suit.
fraud; tortious intereference with expectancy
will capacity:

a. The existence of an expectancy
b. A reasonable certainty that the expectancy would have been realized but for the interference
c. Intentional interference with that expectancy
d. Tortious conduct involved with the interference
e. Damages
fraud:

test for tortious interference with an expectancy
will formalities:

1. Will must be in writing
2. Signed by the testator
3. Attestation (have 2 witnesses who also sign)
3 will formality requirements
will formalities:

wants to impress upon T what he is doing by signing a will. Ct feels if you perform the ritual requirements that you are positive this is how you want property distributed
ritual function
will formalities:

evidence/proof that can be shown to the court indicating what the testator wanted. A written instrument signed in front of 2 witness is evidence of T’s intent.
evidentiary function
will formalities:

requires disinterested witnesses to protect against fraud and UI. Protects the testator at the time of the execution of the will against the undue influence of others
protective function
will formalities:

safe harbor for test to ensure that what T wrote is carried out. Make everyone follow a standardized format-so cts will be able to recognize a legitimate will
channeling function
will formalities:

a) Will be in writing
2. (b) signed by:
a. The testator.
b. In the testator's name by some other person in the testator's presence and by the testator's direction.
c. By a conservator pursuant to a court order to make a will
3. (c) in the presence of at least 2 persons who witnessed at the same time:
a. the signing of the will or
b. the testator's acknowledgment of the signature or the will and understand that the instrument they signed is the testator's will.
**NOTE (CA does NOT require both witnesses to witness each other sign,
but they must witness T sign at the same time)
-if this applies discuss substantial compliance (evid of intent of T) and dispensing doctrine to try to uphold will
california formality requirements
will formalities:

iv. In re Groffman: Wife claimed G did NOT acknowledge his signature to both witnesses simultaneously (G went into an adjacent room with witness 1 (Block) and Block signed the will as a witness, then after Block returned to the lounge witness 2 (Leigh) went into the dining room and signed the will as a witness. Ct held T did not have his will properly attested to. The witnesses’ did not see one another sign nor did T acknowledge or sign in front of them. Violates the Wills act.
will formalities case law
will formalities:

v. Stevens v Casdorph: Mr Miller signed will then bank teller took will to 2 other employees (who did NOT see him sign the will) to sign as witnesses. Exception: allows a witness who already signed a will out of the presence of the first witness, to acknowledge his signature in the presence of the testator AND the 2nd witness.--from Wade v Wade : Ct held Wade Exception was Ok -but what happened her was not ok. WADE NOT APPLICABLE IN CA b/c witnesses don’t have to witness each other sign in CA –they only have to both witness T sign together
will formalities case law
will formalities:

In some states signing in the presence of the testator is satisfied only if the testator is capable of seeing the witness in the act of signing (doesn’t have to actually see the witness sign the will, but must be able to see them if they were to look)—cts have rejected this
presence; line of sight test
will formalities:

Other states say the witness is in the presence of the testator if through sight, hearing, or general consciousness of events, then W comprehends that T is in the act of signing
a. Ex if you see T go into an empty room to sign but don’t witness him sign –and comes out with will signed—so nobody else could have possibly signed—this is enough to make witnessing valid
b. Over the Phone: wont work-b/c there is doubt whether they were signing the document or some other document
c. cts use this
presence: conscious presence test
will formalities:

the test is whether he would have been able to see the witness sign if he had the power of sight
presence: blind witness test
will formalities:

1. T can ask for help when signing their will, BUT if you just take your own initiative and help him sign -then it will NOT be a valid signature.
2. Digital Signatures--are valid as long as he intended it to be his signature
3. Rubber Stamp- valid if they intended it to be their signature
4. Videotaped Will- videotape you describing what you want, the witnesses watch you--then you put the video in an envelope and the witnesses sign it. This doesn’t comply with the writing requirement or the evidentiary requirement
signing requirment of will
will formalities:

1. no requirement for one but it is a good idea to have it b/c if will is contested you will need witnesses to testify (problem if witness forgot or is dead). if you have a Attestation Clause-the law recognizes this as a presumption that the will is valid. (the witnesses certify under oath that they witnessed the testator sign--so they don’t have to testify in court--the document is valid proof)
attestation clause
will formalities:

ix. Estate of Parsons: Parsons left a portion of her estate to 2 of the 3 witnesses. 2 of the 3 witnesses were beneficiaries in the will. One of the receiving witnesses disclaimed their devise. Heirs claimed will invalid b/c a gift to a subscribing witness is void "unless there are 2 other disinterested subscribing witnesses. Ct Held: a subsequent disclaimer is ineffective to transform an interested witness into a disinterested witness---A witness must be disinterested at the time the Testator signs the will.
will formalities case law
will formalities:

1. (a) witness must be competent
2. (b) the will is not invalid because it is signed by an interested witness
3. (c) unless 2 other disinterested witnesses a presumption of UI arises, Fraud which can be rebutted by a preponderance of the evidence.
4. (d) If it is not rebutted then the devise fails except for the portion of the will that P would not have received had the will not been created.
CA PC Setion 6112 interested witnesses
will formalities:

xi. CA PC § 6113 – CA gives full faith and credit to a valid will from another state.
xii. CA PC § 8221 Self proving affidavit
1. sworn (signed) statement under oath by witnesses of will that the will was duly executed
2. if witnesses later die or forget then self proving affidavit can be used in probate as evidence of validity of will without the need of actual testimony by the witnesses
will formalities california law
will formalities:

The client should keep the will in a safe place and not write on the will unless it is their intention to revoke it. Attny should only keep a copy of the will.
safeguarding the will
will formalities;

xiv. In re Pavlinko: H and W mistakenly signed each other’s will. After they died their devisee sought to probate the will (with the wrong sig. on it). Ct does not allow the will for probate, claiming in order to allow it in would require the ct to rewrite the will, which violates the wills act. Mistake in the execution deems will invalid.
will formalities case law
will formalities:

xv. In re Snide (22yrs after Pavlinko): H and W both mistakenly signed each others will. When H died W offered the will to probate. ct said will could be probated. ct declined the formalistic view that H’s intent attached irrevocably to the will, rather than the testamentary intent it reflects. Here, although Harvey mistakenly signed the will of his wife, it is significant that the dispositive provisions in both wills, except for the names were identical. Here, the ct said there is no danger of fraud b/c: Both instruments contained reciprocal elements of a unified testamentary plan and They were both executed with statutory formality - Had the same attesting witnesses - At a contemporaneous execution ceremony
will formalities case law
will formalities:

1. To prove testamentary capacity, intent, etc.
a. Ct is more willing to make changes based on these facts
2. NOT when there is a mistake in how the will was executed
a. Ct is NOT willing to listen to outside evidence
when courts will reform or let extrinsic evidence in to support probate of a will
will formalities:

a. Can be argued when the execution of the will was not proper. Proponent of will has burden to prove by "clear and convincing evidence" that the document to be probated was intended to be the decedents will. If clear and convincing evidence is provided then the purpose of the formality req. (the Ritual, evidentiary, protective, and channeling function) --was served despite a defective execution. Says if you came close then we will let it slide. CA doesn’t have a law that specifically allows this, BUT maybe they will be willing to apply it (remember this on test)
substantial compliance doctrine
will formalities:

a. If the whole point of the will formality requirements are to be confident the will reflects T’s intent and we have evidence of their intent then who cares about the formality requirements. CA has not rejected or adopted it is still an open question—although one appellate ct has applied substantial compliance
dispensing doctrine
will formalities:

xvii. In re Will of Ranney (substantial compliance case): Will was 4 pgs and 5th page was a self-proving affidavit. Witnesses only signed self-proving affidavit (not the will). Wife contested will b/c it was not attested properly (she would get more if will was held invalid). Ct adopts the Substantial Compliance Doctrine-which allows the ct to uphold a will if there is substantial compliance with the Wills Act proven by clear and convincing evidence (represents the movement away from the common law requirement that the required formalities of a will be strictly adhered to). CA has not rejected or adopted the Substantial Compliance Doctrine . NO final decision-so can still argue for ct to use it
will formalities case law
will formalities:

xviii. In re Estate of Hall (dispensing power case-ct dispenses with req’s of Wills Act): Facts: Hall’s daughter argued that a draft of a joint will executed by Hall and his wife and notarized by their attorney in the absence of any other witnesses was invalid because it was not properly witnessed. Rule: clear and convincing evidence was shown to reflect the intent of the testator –so the ct considered it a valid will
will formalities case law
will formalities:

i. This is a handwritten unattested will. This was not meant to replace a formal will but is valid in CA and 24 other states.
holographic will
will formalities:

1. Material provisions (who gets what when you die) must be in T’s handwriting
2. signed by T
3. no witnesses required
*Note: Date not required but helpful as the last written instrument prevails
requirements for holographic will
will formalities:

1. a holograph may be signed at the beginning, or anywhere on the will, BUT if not signed at the end, there may be doubt about whether the decedent intended his name to be a signature
holographic will - the signature requirement
will formalities:

iv. Kimmel’s Estate: K sent a handwritten letter to his 2 kids, whom are seeking to have the letter admitted to probate as his Will. Ct held it was a valid holographic will because he expressed his testamentary intent to devise his property and signed the letter. The signature of father was how he normally signed, so it was ok. Rule: an informal letter can be a holographic will. Deeds, mortgages, letters, powers of attorney, agreements, checks, notes, etc have all been held to be, in legal effect, wills.
holographic will case law
will formalities:

1. Is the paper testamentary in character
2. Is it signed
3. Just the statement of testamentary intent can be pre-printed Ex. I hereby bequeath… (not the material provisions)
4. Extrinsic evidence is admissible to determine whether will is a holographic will --CPC 6111.5
holographic will:

test for holographic will
will formalities:

vi. Estate of Mulkins (First Generation Statute case): Ct found that the printed words were NOT essential to the meaning of the handwritten words --so they upheld the holograph. Ct said they will not look at the preprinted parts of a holographic will, but will look at the handwriting itself to see if it is sufficient
vii. In re Estate of Johnson (Second generation statute case): J used a preprinted form he purchased at a stationary store –filling in the blanks with his own handwriting and signed it. One of the beneficiaries brought will for probate. Son sought to have it denied as invalid holographic will. Ct agreed because the printed portion of the will was essential to establish the testamentary intent of the will (so the preprinted parts were material provisions). T’s intent could not be inferred from the handwritten portion.
holographic will case law
will formalities:

viii. Estate of Muder (Third Generation statute) -7yrs after Johnson: Will was on a preprinted form, signed and notarized, BUT not witnessed. The handwritten dispositive language which was inserted in the paragraph satisfied the court as to intent. ct upheld the will as a holograph. The language "I give to___" was preprinted -so the court couldn’t look at that language. Ct said they see no need to ignore the preprinted words when the testator clearly did not-and the statute does not require us to do so
holographic will case law
will formalities:

ix. In re Estate of Kuralt: Girlfriend of K (Shannon) sought to probate a letter K wrote to her as a valid holographic codicil to K's formal 1994 will (that the holographic codicil amended his prior will). K's estate objected claiming the letter only expressed a future intent to make a will. Rule: when a 2nd will does not make a complete disposition of the testators estate, the second will is more in the nature of a codicil to the first will (Ct held letter to be a holographic codicil which amended his prior will). If holographic will argument doesn’t work--then argue Substantial Compliance
holographic will case law
will formalities:

Conditioned upon the occurance of an event, even if the event does not occur they are usually deemed as valid only that the event was an impetus to draft the will.
holographic will, condition wills
will formalities:

i. Will is an ambulatory document that is not effective until death. To revoke T needs the same requirements to make a will. CA allows for partial revocation.
revocation of wills
will formalities:

2 ways to revoke a will:
subsequent writing

by a physical act
will formalities:

a. That expressly revokes all or part of a prior will.
b. By Inconsistency: if a new will or codicil is inconsistent or contrary to a prior will. (see below)
revocation of wills:

subsequent writing
will formalities:

a. Burned, cancelled, destroyed, obliterated, torn.
i. Burned – does not have to totally destroy, slight singe is sufficient
ii. Tear – Must occur through a material part
iii. Cancel – draw X or void on material part
iv. Obliterate – Erase or cross out portion or entire will
b. Need present intent and
c. Done by T or by another in T’s presence at T’s request
d. A will found mutilated in T’s presence at death is considered to be revoked.
revocation of wills:

by a physical act
will formalities:

1. A subsequent will wholly revokes a previous will by inconsistency if T intends the subsequent will to replace rather than supplement the previous will
2. A subsequent will that does NOT expressly revoke the prior will but makes a complete disposition of the testators estate is presumed to replace the prior will and revoke it by inconsistency.
revocation of wills:

revocation by inconsistency
revocation of wills:

3. If the subsequent will does NOT make a complete disposition of the testators estate, it is not presumed to revoke the prior will, it is viewed as a codicil (a codicil supplements a will rather than replaces it)
4. Note: The revocation of a codicil does not affect a prior will---But the revocation of a will revokes all codicil's--estate will be distribute intestacy
revocation of wills:

revocation by inconstistency
will formalities:

iv. Harrison v. Bird: Speer (the deceased) had her attny destroy her will that named P as beneficiary. S was NOT in atty’s presence when he destroyed it. Atty mailed the torn pieces to S. P retained her copy and offered it for probate. Rule: If evidence proves T had possession of will prior to death, BUT will cannot be found in T’s personal effects after death, then a presumption arises that T destroyed the will Ct held for D, when a duplicate will is destroyed it is presumed revoked so burden is shifted to the person trying to uphold the will as valid to rebut the presumption that will was destroyed.
revocation of wills case law
wills formalities:

v. CA law says you must destroy the original and any duplicate original if you want to revoke a will
revocation of wills CA law
wills formalities:

CA PC § 6121: if a duplicate-original will is revoked/destroyed according to CPC 6120 (above) then all duplicates are revoked, BUT if there is still another duplicate-original out there (in atty office or safe deposit box) then will is NOT destroyed.
1. Duplicate-original: has you signature on it (you put pen to paper)
2. Duplicate: a Zerox copy of original
revocation of wills:

duplicate wills
wills formalities:

CA and the majority of states allow for a party to prove by clear and convincing evidence. Photocopy from atty. A will that is lost, destroyed without the consent of the testator, or destroyed with the consent of the testator but not in compliance with the revocation statute --can be admitted into probate if its contents are proven (Ex by a copy of will from lawyer or drafters office OR by clear and convincing evidence)
revocation of wills:

CA probate of lost wills
wills formalities:

ix. Thompson: K drafted a will then later instructed her atty that she wanted to revoke it. Her atty wrote on the back of the will her intent to revoke it-then had her sign it. Revocation is being contested. Ct held to cancel a will: you must touch the words/language on the will (Deface words of the will) writing in the margin is NOT enough. If she had written the note instead of her attorney then it would have been a valid codicil-and would have voided the will
revocation of wills case law
wills formalities:

1. CA allows this (Most states also allow it).
2. you can cross out part of a will and replace it in with your handwriting
a. Ex will says car to A, and you cross out A and write in B
3. Ct looks to determine if the devise is being increased or decreased. Only decreases by physical act are permitted. Due to suspicion of fraud
revocation of wills:

partial revocation by a physical act
wills formalities;

i. Doctrine of DRR, if T purports to revoke his will upon a mistaken assumption of law or fact, the revocation is ineffective if T would not have revoked will if he had known the truth.The Doctrine only applies when it is clear that T’s revocation of the old will was made conditional upon the validity of the new will.
dependant relative revocation and revival
wills formalities:
where there is an alternative plan of disposition that fails: or where the mistake is recited in the terms of hte revoking instrument; or where the mistake is shown by clean and convincing evidence
dependant applises to the following 3 scenarios
wills formalities:

iii. LaCroix v Senecal: Dupre executed a will leaving half her estate to her nephew and half to Senecal. Dupre then executed a codicil which changed her residuary clause and reaffirmed the devises in the first will. Dupre had Senecals husband witness the codicil. Dupre’s niece contested the codicil b/c it violated Sec 6952 of the General Statutes which states:Rule: When a testator repeats the same dispositive plan in a new will/codicil, revocation of the old will is dependent upon the legal effectiveness of the new will. where the intention to revoke is conditional and the condition is not fulfilled, the revocation is NOT effective (the gist of the The Doctrine of Dependent Relative Revocation restated simpler)
dependant relative revocation and revival
wills formalities:

1. CA law on whether a first will is "Revived" by a revocation of subsequent will CA PC § 6123 (b):
a. If a second will that revokes a first will in whole or in part, is thereafter revoked, then the first will is also revoked UNLESS it is evident T intended the first will to take effect.
b. If a second will that revoked a first will, is thereafter revoked by a third will, then the first will is also revoked UNLESS it appears from the terms of the third will that T intended the first will to take effect.
i. you must indicate that you want to revive the 1st will in the 3rd will-or it will not be revived
DRR revival statutes
wills formalities:

v. Estate of Alburn: Mrs. A had a will in Milwaukee, then a yr later executed one in Kankakee which revoked the M will. She later destroyed K will with the intent of reviving the M will. She died yr later and sister claim she die intestate so she would inherit. Wisconsin has a “No Revival Statute”. Ct used DDR to probate K Will b/c it was closer to her intent than intestacy. Had there been a Revival Statute the doctrine would not have been needed--b/c revival statutes makes DDR unnecessary when a party revokes a second will with the intent to revive a prior will (see below). BUT the doctrine would apply in a situation where a 2nd will that is improperly executed attempts to revoke a prior will but fails b/c it is not valid
dependant relative revocation and revival
wills formalities:

i. Change in family circumstances after the execution of a will. Divorce revokes any provision in the decedents will for the divorced spouse.
revocation by operation of law
wills formalities:

ii. CA PC § 6560 Share of an omitted spouse (Pretermitted (omitted) Spouse)
1. (a) receives all community property
2. (b) receives all QCP
3. (c) receives at most 1/3 separate property
revocation by operation of law CA law
wills formalities:

iii. CA PC § 6561 (Exceptions to 6560 to overcome pretermitted share request)
1. A provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement
2. The spouse is provided for in the will; OR
3. The will discloses an intention NOT to make a provision for the spouse
revocatino by opertion of law CA Law
wills formalities:

iv. CA PC § 6570 Child born or adopted after execution of a will
1. Unintentionally omitted – receives intestate share
v. CA PC § 6571 Child not receiving share
1. (a) failure to provide for child was intentional on face of will
2. (b) T devised the estate to the parent of the omitted child
3. (c) child is provided for by will substitutes
revocation by operation of law CA Law
wills formalities:

vi. CA PC § 6122 Revokes the power of an ex-spouse by dissolution
1. If spouses divorce then the portions of the will devising property to the ex-spouse are void, unless you specify otherwise. If remarry then the will is revived. Does not apply to will substitutes.
revocation by operation of law, CA Law
wills formalities:

1. All papers preset at the time of execution intended to be part of the will are integrated into the will. External Evidence (EE) is allowed to show what was present at execution and what was intended. Cases involving integration arise when: 1) pages are not physically connected 2) there is no internal coherence 3) there is evidence that a staple has been removed 4) where one page is typed with elite type whereas the rest of the will is in pica
compenents of a will:

doctrine of integration
wills formalities:

2. In re Estate of Beale: B at a goodbye party asked 3 of his professor friends to witness his will-he laid a pile of papers on the table, declaring it his will, then he signed and the witnesses signed the last page. After the testator's death, none of the witnesses could identify any page, except the signature page, but all pages had the testators signature on the margin. On the same day as the party (either before or after the execution ceremony) testator wrote his secretary from NY asking her to retype pages 12 and 13 to make changes including naming a friend as the executor instead of his wife. The pages were retyped by the secretary AFTER the testators death---they also had the testators initials on the margin. Ct admitted will to probate BUT did not admit the revised pages secretary had b/c they were not present when will was executed and there was no way he could have initialed the pages since he was dead.
components of a will:

doctrine of integration case law
will formalities:

1. Republication applies only to a prior validly executed will. A will is treated as re-executed (republished) as of the date of the codicil.
a. Ex. Testator revokes 1st will by 2nd will and then executes a codicil to the 1st will. The 1st will has been republished, thus the 2nd will is revoked by implication (unless codicil didn’t entirely “squeeze out” 2nd will).
republication of codicil
will formalities:

is a supplement or addition to an existing will made to alter provisions of the will and must have testamentary character. Cannot cure prior execution issue, if prior will not properly executed cant resolve by republishing.
codicil
will formalities:

a. Writing must be in existence when will is executed
b. language in will must manifest intent to incorporate document
c. Will must describe document to permit its identification
d. Burden is on party seeking to have document admitted to prove document they have is the document referenced in the will
incorporation by reference: CA requirements
will formalities:

3. Clark v. Greenhalge (Repub. by codicil and Inc. by Reference case): N left a will, which named D as executor. N also had a notebook that had a list of how to devise her property. P was supposed to receive a painting according to the list. D would not give it to P. Rule: document must be in existence at the time of the execution of the will and must show satisfactory proof document is the referenced document in the will (referenced document does not have to be signed and witnessed). Ct held for P, because even though the list in notebook was drafted after the execution of the will, N executed a codicil after the list was created The republication by Codicil made all the changes in the notebook subsequent to the execution of the will--thereby making them effective. Without the republication they would NOT have been incorporated by reference b/c they were not in existence prior to the execution of the will.
incorporation by reference case law
will formalities:

4. Smith v Greyson: T's will dated March 25, 1932 left $4,000 to his executor -to be paid out according to a letter in safe deposit box addressed to executor and dated March 25, 1932. T executed a Codicil Nov 25, 1933 -making a small change but otherwise didn’t affect the will. T died and a letter dated July 3, 1933 addressed to the executors was found in T's safe deposit box.-No letter dated March 25th was found. Ct held letter in safe deposit box was the letter referred to in the will (despite the discrepancy in the dates)-it was incorporated by reference into the will. the letter was dated prior to the date of the codicil, which republished the will, so it complied with the requirement that an incorporated document be in existence on the date of the republished will
incorporation by reference case law
will formalities:

1. Doctrine allows EE to identify beneficiary or property passing under a will. If the beneficiary or property designations are identified by acts or events that have a lifetime motive and significance apart from their effect on the will the gift will be upheld under this doctrine.
acts of independant significance
will formalities:

a. Identify what the act, event or thing referenced in the will is
b. Does that act or event have significance independent of how the will says the property is to be distributed
i. EX. T has a Toyota and just before dying goes out and buys a Cadillac. P devises my car at death to P. This valid. Motive is get the item to use not to give as gift.
acts of independant significace case law
will formalities:

a. A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether the acts and events occur before or after the execution of the will or before or after the testator's death.
i. Ex. The execution or revocation of a will of another person is such an event.
acts of independant significance: CA LAW
will formalities:

the devise of a safety deposit box will include the contents as well. Same with locked desk drawer. Not if unlocked.
acts of independant significance general rule
contracts wills:

1. Ex. If you have an agreement to provide services in exchange for being provided things in a will--it is evidence of a contract--therefore you can sue the estate for breach of contract if they fail to pay
2. But if a relative gave services most courts would not award anything b/c they have a preexisting legal obligation to take care of the person already
3 types of K relating to wills:

a contract to make a will
contracts and wills:

1. A contract to NOT revoke is unenforceable unless it is proven by clear and convincing evidence.
2. A contract not to revoke a will is breached if, after the contract becomes binding: a party dies leaving a will that does not comply with the contract (usually the T affirmatively revokes the contractual will by leaving a later will with different terms.)
3 type sof K relating to wills:

a contract not to revoke a will
contracts and wills:

a contract to make a will: a contract not to make a will: a contract not to revoke a will
3 types of k to relating to wills
contracts and wills:

iv. Many states require K to be in writing to be enforceable (to satisfy SOF). However if SOF prevents enforcement of the K ct may still award as restitution, the value of the services rendered to the decedent
contracts relating to wills
contracts and wills:

1. The Will will be probated
2. Ct can impose the following remedies for broken K:
a. A constructive trust on the estate or the successors of the defaulting party
b. Specific performance, and
c. Others award damages.
d. Usually the remedy is:
i. An award to the contract beneficiary of "the value of the property which was to come to" her under the contractual will, OR
ii. An order compelling the decedents "successors to transfer the property to the contract beneficiary in accordance with the deceased's agreement
if have a K, but when party dies the iwl does not comply with a K
contracts related to will:

1. (a)-Talks about how you prove there was a contract (b/c we don’t people going into court and saying there was a contract--we want proof
a. a will showing there was a K
b. a will that expressly references the K
c. A writing signed by the decedent evidencing the contract
4. Clear and convincing evidence (gets around writing requirement)
d. Clear and convincing evidence of K-a 3rd party beneficiary comes in and says they had a deal (2 other parties) and I was going to benefit from it
2. (b) The execution of a joint will or mutual wills does NOT create the presumption of a K not to revoke the will
contracts relating to wills CA Law
contracts and wills:

one document executed by both parties to be the will for each of them. Goes through probate twice.
1. When one testator dies, the instrument is probated as the testators will
2. When the other Testator dies, the instrument is again probated, as the other testators will
3. a joint will is very uncommon and well counseled testators do NOT use them
4. Problems with using a joint will:
a. implies an understanding or agreement and thus invites a claim of contract--the terms of which can be inferred from the will
contracts related to wills:

Joint Will
Contracts Related to Wills:

2 separate wills with the same provisions granting all to the survivor.
reciprocal will
contracts related to wills:

the separate wills of 2 or more persons that contain similar or reciprocal (mirror-image) provisions.
1. mutual wills are very common b/c spouses often want to favor each other
2. Problems with using a mutual will:
3. some courts find an implied contract in the existence of a common dispositive scheme in mutual (reciprocal) wills, an implication that is usually without basis
mutual will
contracts related to wills:

refers to a joint will in which the respective testators make similar or reciprocal provisions
joint and mutual wills
contracts related to wills:

xi. Via v. Putnam: H and 1st wife signed a mutual will leaving residuary their children (P). 1st wife died and H married wife 2(D) and never changed his will. H died and wife 2 filed a Petition to Determine Share of ' Spouse and an Election to Take Elective Share. Court held for D. because preterminated spouse statute has priority over K claims. Rule is that a spouse has prioerty over 3rd party beneficiary claims.
elective share statute
contracts related to wills:


gives surviving spouse the right to elect against the decedents will and take a forced share of the decedents estate. Ex. if you only left a pittance to your spouse in the will she can reject the will and take a larger share--30% of the market value-on the date of death after deducting all valid claims against the estate all mortgage, liens, or security interests
elective forced share
contracts related to wills:

if person remarries after making a will and new spouse survives testator, the surviving spouse shall receive a share in the estate of the testator equal in value to that which the surviving spouse would have received if the testator had died intestate UNLESS:
1. A provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement
2. The spouse is provided for in the will; OR
3. The will discloses an intention NOT to make a provision for the spouse
permitted spouse statute
contracts related to wills:

xiv. NOTE: Majority Rule--is the opposite result of this case. Under majority rule kids would have won--K rights will be enforced first
contracts related to wills majority rule
construction of wills:

1. if words in will are unambiguous on their face then extrinsic evidence is inadmissible to alter T’s intent. Majority view. Very strict.
the plain meaning rule or no extrinsic evidence rule
construction of wills:

EE is always allowed to determine if language in will is ambiguous but ct will only use the EE if the language is reasonably susceptible to more than one meaning (if the meaning is unclear)
the plain meaning rule or no extrinsic evidence rule:

CA rejects this rule
construction of wills:

a. Patent Ambiguity: an ambiguity that is obvious on the face of the will
b. Latent Ambiguity: an ambiguity that does not appear on the face of the will, but manifests itself when the terms of the will are applied to the testators property or designated beneficiaries
i. Ex.: when will clearly describes a person or thing, but 2 or more persons or things fit that description
ii. Ex.: When no person or thing exactly fits the description, but 2 or more things partially fit.
2 different typtes of amibiguities
construction of wills:

1. reformation is an equitable remedy that, if applied to a will, would correct a mistaken term in the will to reflect what the testator intended the will to say
2. justification for refusing to reform a will is that it compels the court to interpret the words the testator actually used-not the words the testator is purported to have used
no reformation rule
construction of wills:

i. when extrinsic evidence is admissible to show that the testator meant someone other than the person with the legal name of the legatee
1. Ex if T says I leave A car and he always referred to his dog as car
personal usage exception
construction of wills:

i. a careful review of cases shows an unmistakable trend toward admitting extrinsic evidence not merely to resolve ambiguities, but also to correct mistakes to further the actual intent of the testator
slouching toward reformation: correcting mistakes without hte power to reform wills
construction of wills:

d. Mahoney v. Grainger: S died leaving the residuary of her estate to her “heirs at law” living at the time of her decease. Apparently meaning P’s, her 2 first cousins. But other first cousins contested that they can take under the will as “heirs”. Ct held for D, because there was no ambiguity here as heirs at law has a legal meaning and therefore no extrinsic evidence will be allowed. Rule: It is only where testamentary language is NOT clear that evidence may be introduced to show what T meant by language. If no doubt exists there is no room for extrinsic evidence-the will must stand as written
construction of wills case law
construction of wills:

e. CA § 21122 technical words used in technical sense will be given technical meaning unless P was unacquainted with the term and the context of use is to the contrary.
construction of wills CA Law
construction of wills:

f. Arnheiter v Arnheiter: Guterl died and her will directed the executrix to sell her undivided 1/2 interest of premises known as No. 304 Harrison Avenue, Harrison, NJ and use the proceeds to establish a trust for her 2 nieces. Problem, is Guterl had an interest in 317 Harrison Avenue NOT 304 Harrison Ave. The nieces have applied to the court to correct the mistake. ct disregarded the number 304 and focused on the remainder which was Harrison Ave, Harrison, NJ--since Guterl only had an interest in this property and made no other specific mention in her will relating to 317 Harrison Ave--the rest of the description was sufficient to identify the property as 317 Harrison Ave
construction of wills case law
construction of wills:

g. Estate of Gibbs: The will of George and Lena Adele named Robert U. Krause of 4708 North 46th Street, Milwaukee, Wisconsin if he survived the testators. Problem: It should have read Robert W. Krause who lived at a different address. Traditional Rule: no reformation, even if a mistake, unless-there is an ambiguity in the text of the will-then EE will be admissible. Rule: details of identification (middle initials or street addresses) which are highly susceptible to mistakes (particularly in metropolitan areas) should NOT be given sanctity to frustrate clear demonstrable intent. ct said it was just an error of identification of detail--so they disregarded the middle initial and the address (maybe the result is good -but the methodology isn’t--they are crossing out a lot of stuff)
construnction of wills case law
construnction of wills:

h. Erickson v Erickson: Facts: Ronald Erickson executed a will two days before getting married that was intended to leave his estate to his future wife but technically did not provide for the contingency of a subsequent marriage. Rule: Extrinsic evidence is admissible to establish the intent of a testator that his will is valid notwithstanding a subsequent marriage if a scriveener’s error led the testator to believe that it would be valid. Ct held for D, because the modern trend is to allow EE when there is evidence of a drafters error, to show the intent of T. Here E would not have signed a will 3 days before his wedding if he did not think the will would be valid. Ct says EE can be admitted to show: A mistake by the drafter (scrivener) and If proof of mistake is made with clear and convincing evidence. -ct says we allow extrinsic evidence in parol evidence cases and it hasn’t opened the flood gates to litigation--so why not allow it.
construnction of wills case law
construnction of wills:

i. Fleming v. Morrison: B had his atty draft a will to get P to sleep with him. B only had 2 witnesses sign it. Must have 3 in Mass. Ct held for D, because the will was not duly attested by a sufficient number of witnesses, and B did not have testamentary intent to make this his will. CA requires 2 witnesses present at the same time to properly acknowledge.
j. Estate of Russell: The testator left her $10 gold piece and diamonds to Hembree, her only heir at law, and the residue of her estate to Charles Quinn and Roxy Russell, the latter being her dog, who predeceased her. Rule: When an uncertainty arises upon the face of a will, it cannot always be determined whether the will is ambigious or not until the circumstances surrounding the writing of the will are first considered.
consrunction of wills case law
Death of Beneficiary:

specifically identified gift (my watch, car, 300 shares of stock)
death of beneficiary: specific gift
death of beneficiary:

is just monetary value (without specifying a particular property-usually just a number Ex $5,000)
1. If a specific or general devise lapses the devise falls back into the residue
a. Ex. T gives a watch to A, $10,000 to B, and residue to C--A and B both predecease T -so C gets everything
death beneficiary:

general gift
death of beneficiary:

– a general gift that specifies the fund or property from which transfer is primarily to be made. Difference can be made up from general assets.
death of beneficiary:

demonstrative gift
death of beneficiary:

is a transfer of property that remains after all specific and general gifts have been satisfied
death of beneficiary:

residuary gift
death of beneficiary:

1. If a residuary devisee or all residuary devisees predecease T, the heirs of T take by intestacy (The No-Residue-of-a Residue-Rule)
a. Ex T devises the residue of her estate 1/2 to A and 1/2 to B. B predeceases T--B's one half goes to T's heirs NOT to A
b. BUT CPC 21111(b) REVERSES the No-Residue-of-a Residue-Rule and lets the residue that B was given bounce to A (the other residuary instead of back to T’s heirs)
c. Ex will says $100 to A, residue to B and C (T's brother). A and B survive T, C does not, but C is survived by D.
i. Common law says C shares bounce back to T’s heirs (under the No-Residue-of-a Residue-Rule)
ii. CA says residue bounces to B (b/c CA reversed the No-Residue-of-a Residue-Rule)
iii. BUT we need to see if antilapse applies first
1. is C kindred of a transferee—yes
2. does C have kindred to take his place-yes, D
3. so D steps into C shoes and takes
death of beneficiary:

residuary gift
death of beneficiary:

If a devisee does not survive the testator -the devise lapses
devise
death of beneficary:

where the devisee is dead at the time the will is executed or is a dog or cat or some other ineligible taker-then the devise is void and falls to residuary
void gift/devise
death of beneficiary:

devise is to a class of persons, if a member predecease T the surviving members of the class divide the gift. Can recognize this as the # can fluctuate and the members usually share a common characteristic.
class gift
death of beneficiary:

i. Says if a transferee (see below) is dead when will is executed, or fails to survive T, or is treated as failing to survive T (Slayer statute), then the issue of the deceased transferee takes in his place (as provided under Section 240--Modern Per Stirpes)—another version below. Says under certain circumstances if the beneficiary is not around to take his gift, instead of bouncing it back to residue, we let the dead beneficiaries issue take in his place
antilapse
death beneficiary:

1. Kindred of transferor (Blood relative)
2. Kindred of surviving spouse of transferor
a. does NOT apply to spouse of transferee—only kindred
3. Kindred of a deceased spouse of transferor
4. Kindred of a former spouse of transferor (kindred of ex-spouse)
antilapse only applies to 4 categories of transferees
death of beneficiary:

if you make a class gift, but one of the members of the class died before you made your will and you knew it--then antilapse will NOT apply to them
antilapse:

Class gift
death of beneficiary:

1. T indicated that it should not apply
2. T indicated a substitute disposition if transferee should die
3. T required transferee to survive T for a specified period of time -requires clear and convincing evidence of survival (CPC 21109)
4. T requires transferee to survive until a future time that is related to the probate of the T’s will or administration of T’s estate
antilapse:

antilapse is a default rule and will apply unless a contrary intention is given such as
death of beneficiary:

vi. If a beneficiary predeceases T, then his gift lapses. Unless there is an alternate disposition in the will.
antilapse
death of beneficiary:

1. Ex. $1000 to my son A, $100 to my brother B, residue to W. A, B, and W survive T. B killed T. B is survived by a son C. B didn’t predecease T, but is barred from taking under slayer statute CPC 250(b). This means that although antilapse would have applied-the slayer statute says it will not apply to B’s gift so B's gift will bounce to residue (pass to B’s heirs as if B predeceased T)
antilapse:

slayer statute
death of beneficiary:

viii. Estate of Russell: The testator left her $10 gold piece and diamonds to Hembree, her only heir at law, and the residue of her estate to Charles Quinn and Roxy Russell, the latter being her dog, who predeaceased her.Rule: If a devise to a residuary beneficiary is determined to be a void gift (b/c like here it was to a dog), then that portion of the residuary estate is deemed undisposed of and passes to the heirs at law
antilapse case law
death of beneficiary:

1. b/c antilapse does not apply to a dog
2. CPC 21111(b) reverses the No-Residue-if-a Residue-Rule and lets residue bounce to B (the other residuary instead of back to T’s heirs)-problem is that this law didn’t apply when this case was heard
antilapse:

undern modern statute law
death of beneficiary:

x. Allen v. Talley: MS executed a will that left her estate to her living brothers and sisters, but the children of her deceased siblings claimed they were entitled to a share. Ct held for D, because the language stated living siblings and thus expressed intent that they must survive her. ct said Antilapse doesn’t apply b/c a contrary intention was specified.
antilapse case law
death of beneficiary:

xi. Jackson v. Schultz: P are the step children of LB. LB left his entire estate to his wife (P’s mother) and her heirs and assigns. P’s claim title to the house and are trying to sell it to D. Ct had to determine if will gave wife an outright gift of the estate-if it was then b/c the gift to W lapsed the property goes to the state. BUT if "and" is changed to "or" then step kids can take. Ct said "and" can be substituted for "or" when dealing with heirs BUT not to assigns (who the heirs assign the property to). ct said the total testamentary background of this case calls for a finding of intent that a substitutionary gift over to the testators stepchildren be made in the event of his wife's death prior to his own. how comfortable are we with the court changing a will--but in this case it was the fair thing to do.
antilapse case law
death of beneficiary:

1. Payable on Death designations (POD). Falls under the law of K. A 3rd party beneficiary is not required to survive T and may pass K rights to their heirs. Not subject to anti-lapse.
2. Revocable trust – Inter vivos trust creating remainder interest in beneficiary. Anti-lapse does apply.
3. Joint Tenancy – Not subject to anti-lapse.
antilapse:

non probate transfer
death of beneficiary:

i. A class gift is a gift to a group of people defined by a position
1. Ex. To A's Children; to my nephews and nieces; children; brothers; nephews; descendents; family
2. Note: when at the time the gift is made:
a. the number of beneficiaries are certain,
b. and the share each beneficiary is to receive is certain, (share is not dependent for its amount upon the number who are still alive in class)
c. it is NOT a gift to a class, it is a gift to each individual.
class gifts
death of beneficiary:

if devise is to a class of persons-and one member of the class predeceases T then the surviving members divide the gift
1. Ex. Will says $1000 to my brothers A,B,C,D. A, B, and C are alive ,but D predeceased T. D's share bounces to A, B, and C
class gifts rule
death of beneficiaries

1. Ex. Will says $1000 to my brothers A,B,C,D. A, B, and C are alive, D predeceased T-but D has a surviving son E. D's share bounces to E (D's issue) each get $250
2. Ex. Will says $1000 to my brothers A,B,C,D. A, B, and C are alive, D predeceased T, but D has a surviving wife. D's share bounces to A, B, and C. Antilapse doesn’t apply to wife
3. Ex $1000 to my law partners (at time you wrote will A, B, C, and D were the partners). But when T died only A, B, and C are alive--D is dead -but D has a son E. D doesn’t fall into any antilapse category (b/c no relation to T) so antilapse doesn’t apply. We revert to class gift default rule--so it bounces to A, B, and C
class gifts:

Antilapse can apply to a class gift
death of beneficiary:

iv. Dawson v. Yucus: NS died leaving a will. The 2nd clause of her will devised her 1/5 interest in her late husbands land to Burtle and Wilson (two of her nephews on her husbands side). Burtle predeceased Nellie. Wilson claims the devise to them was a class gift so he is entitled to the entire 1/5 interest. NS’s heirs claim the gift lapsed when Burtle predeceased Nellie and passed into the residuary of the will. ct held a gift to “Burtle and Wilson” is NOT a class gift b/c: it names individuals by name and it specifies a specific share to each person (was not dependent on the number of nephews that survived T). CA would have applied anti-lapse to save the gift b/c B was related (B was kindred of deceased spouse of T). So B’s issue would take
class gifts case law
death of beneficiary:

v. In re Moss: Facts: The fact that an independent attorney was consulted and drew up the will by which Fannie Taylor Moses left most of her property to her attorney/lover did not overcome the presumption of undue influence, according to the court that denied probate. Rule: A presumption of undue influence arises when an attorney with whom the testator had a continueing fiduciary relationship is a beneficiary undue the will, which is not necessarily overcome simply because the will was actually drawn up by an indpenedant attorney with whom the testator consulted on his or her own.
class gifts case law
death of beneficiary:

says if you leave someone property in your will but when you die it is no longer owned by you, then the property has adeemed. The ct says if you dispose of property that you leave someone in your will before you die it is presumed that you no longer wanted then to take it under the will.
chages in property after execution of will:

ademption
death of beneficiary:

If a specific gift is not in T’s estate at death then it is adeemed (if you don’t own it then they cant get it)
changes in property after execution of will:

ademption general rule
death of beneficiary:

a. a general gift (money),
b. a demonstrable gift (a general devise payable from a specific source--Ex I leave you $5,000 payable from the sale of my truck. What happens if when I die I do not own a truck? The ct will infer that I wanted you to have $5,000 and if that source of funds is not available then you can use some other source of funds
chages in property after execution of will:

ademption does not apply to
death of beneficiary:

a. T’s 1990 will says: My Car to A, residue to B. In 1995 T sold the car for $50,000. When T died his estate has $50,000 (from the sale of the car). The car is a specific gift--so A gets nothing and B gets the residue of $50,000
b. But if T’s will says $50,000 to A residue to B. When T died the only thing in his estate was his car. So estate will sell the car—any money from the sale of the car up to $50K goes to A, anything over $50K goes to B as the remainder.
changes in proeprty after execution of will:

examples of when ademption will apply
death of beneficiary:

a. Can classify the devise as general or demonstrative rather than specific
b. Classify the inter vivos disposition as a change in form, not substance (Identity Theory)
c. Construe the meaning of the will as of the time of death, rather than at the time of execution
d. Create exceptions (involuntary transfers)
ademption

Courts have several escape routes to avoid ademption
death of beneficiary:

5. Wasserman v Cohen: Facts: Wasserman (p) sought the proceeds from the sale of a building that would have been conveyed to her through a revocable inter vivos trust at the settlor’s death had the settlor not sold the building prior to his death. Rule: When a testator disposes, during his lifetime, of the subject of a specific gift of real estate contained in a revocable inter vivos trust, that gift is held to be adeemed by extinction. Ct refused to abandon The Doctrine of Ademption. the ct said the doctrine gives effect to a testators probable intent by presuming he intended to extinguish a specific gift of property when he disposed of that property prior to his death
ademption case law
death of beneficiary:

1. its not that the property is not in your estate it is just in a different form
a. Ex. T owns 100 shares of Yahoo stock at $80 a share totaling $8K. will says 100 yahoo to A. There is a stock split (2 for 1). T dies with 200 shares. Ct says the 200 shares are the 100 shares there is just a change in form --so in CA you would get all 200 shares
b. BUT if the stock pays out a cash dividend you are not entitled to get that (splits are one thing dividends are another)
identity theory of ademption
death of beneficiary:

1. (a) says if you sell or transfer the gift, but the estate is still owed money, then you can get the difference
a. Ex. Leave someone a house, but you then sell it for $500,000. When you die the estate has only collected $300,000 of the $500,000. CA says if A was going to get the house then he can also get the remaining $200,000 from the estate as it is paid in
b. CA says if property is not in your estate b/c it was taken from you (not b/c you sold it)-then the person you wanted to take the house will get the value of the estate
ademption

involuntary transfer
death of beneficiary:

1. if an executor, conservator, or agent took property out of the estate -then you will still get the value of the house-ct says only if T sold it will we presume that he didn’t want you to have it
ademption:

specifically given proeprty is sold by conservator or agent
death of beneficiary:

1. if T specified that you were to get 30K, but T gave you 15K before he died--then the 15K will not count as a satisfaction unless the following 4 requirements are met:
a. T acknowledges the satisfaction in writing
b. Beneficiary acknowledges the satisfaction in writing
c. the will provides for a deduction of lifetime gifts from the devise
d. if T gave the specific item listed in the will (Ex will says I leave you my truck and I gave you my truck before I died)
ademption:

satisfaction
death of beneficiary:

1. CA reverses the presumption that a specific disposition of real property in a will subject to a mortgage, deed of trust, or other lien, existing at the date of death, should be paid off from the estate--UNLESS the will states otherwise (just saying all debts shall be paid from the estate will not satisfy exoneration)—Beneficiary takes the devise as is
2. Arises when there is a devise of real property with a mortgage attached. Does the devise pass free and clear of the mortgage?
3. CA PC § 21404 – other specific gifts do not abate to pay debt on a devise.
ademption:

exoneration
death of beneficiary:

says what will happen if there is not enough property in your estate to pay all debts and devises. In the absence of an indication in the will the abatement follows the following order (people are cut in the following order):
1. People who would take under intestacy
2. Residuary beneficiaries
3. General gifts to a non-relative
4. General gifts to the testators relatives
5. Specific gifts to the Testators non-relatives
6. Specific gifts to the testators relatives
abatement
death beenficary:

when trying to satisfy a pretermitted spouse or child’s share Specific and demonstrative devises are the last to abate and are reduced pro rata (equal shares)
-if general or specific heirs have unequal shares then pro rate
according to what they are taking
Ex. estate has $50K:
Car to A $10K
$40K to daughter
$10K to C friend
-have a pretermitted spouse-that we have to satisfy
A loses $3,333
B loses $13,333
C loses $3,333
-to satisfy wifes share of $20K (for separate property pretermitted spouse takes 1/3, and if 2 heirs they each take 1/3)
abatement:
death of beneficiary:

1. CA PC § 21135 – allows any type of gift to be satisfied by an inter vivos transfer during T’s lifetime.
2. Applies when T makes a transfer to a devisee after executing a will. There is a rebuttable presumption that the gift is in satisfaction of the gift by will.
3. This does not apply to specific gifts, as a specific gift would be adeemed. Similar to advancements under intestacy.
satisfaction of general pecuniary bequests
rights of surviving spouse:

1. Requires that the spouse of an employee must have survivorship rights if the employee predeceases the spouse. This insures the surviving spouse has income
2. If the surviving spouse survives to retirement age:
a. the pension must be paid as a joint and survivor annuity to the employee and his or her spouse, unless the non-employee consents to some other form of payment of the retirement benefit, such as a lump sum.
3. If the employee dies before retirement and the pension is vested the surviving spouse is entitled to a pre-retirement survivor annuity
4. premarital agreements cannot waive ERISA-covered pension plan rights
5. workers under age 35 cannot effectuate a waiver of spousal benefits
spouse pension plan rights:

ERISA governs spouses rights in pension plans
rights of surviving spouse:

i. designed to secure the family home to the surviving spouse and minor children, free of claims of creditors up to $75,000 (generally the surviving spouse has the right to occupy the family home for his or her lifetime)
ii. a decedent spouse has no right to dispose of a homestead so as to deprive the surviving spouse of statutory rights therein
homestead
rights of surviving spouse:

i. entitles a widow to a life estate in 1/3 of her husbands qualifying land
ii. Dower function today primarily to make the signatures of both spouses a practical requirement to the sale of one spouse's land.
iii. Dower has been abolished in the great majority of states
Dower
rights of surviving spouse:

i. usually used to indicate the support interest of a husband
ii. at common law a husband had a support interest in his wife's lands it is comparable to a dower except:
1. The H did not acquire curtesy unless children were born of the marriage
2. The H was given a life estate in the entire parcel, not just 1/3 (like W gets under Dower)
iii. Curtesy survives today in a handful of states
curtesy
rights of surviving spouse:

i. Gives the surviving spouse 2 options under the decedents will:
1. The spouse can take under the decedents will
2. The spouse can renounce the will and take a fractional share of the decedents estate
elective forced share
rights of surviving spouse:

i. CPC 21610 Presumes that you just forgot to modify will to include new wife, unless:
1. From the face of the will it appears the wife was intentionally left out
2. If made a transfer of assets (not from estate) to your wife and you intended that transfer to be in lieu of taking under the will
3. Where the spouse waives any rights she would have to take under the will
Omitted spouse
rights of surviving spouse:

ii. If wife is entitled to a pretermitted share how much does she get?
1. her half of the community property
a. this means you will have to abate some property in will b/c wife is taking 1/2 of the property you gave away to somebody
2. her half of the quasi community property
3. for separate property she gets what she would have gotten intestate up to a limit (if 2 or more issue she gets 1/3; if 1 issue she gets 1/2; if no issue she only gets 1/2)
4. In CA the marriage must have occurred after all the testamentary documents were executed for this to apply
omitted spouse
rights of surviving spouse:

iii. Rule of Abatement for an Omitted Spouse, CA 21612
1. if abatement of assets then spouse takes from individuals getting property via intestacy b/c T didn’t expect them to take anyway (so why not take form them first)
2. but she takes pro rata from everyone else (except for specific gifts that will affect T's intent)
a. Ex. Will says "my prized car and $10,000 to my son A; my watch and $10,000 to B; Residue to C. When T dies his estate consists of his car, watch, and $5,000 cash. So we have a deficit we need to make up for. Under regular abatement rules there is nothing left for intestatcy (go through list order of who take for abatement) Sspecific gifts are given first. Result -Car to A and $5,000--Watch to B –nothing left for wife
omitted spouse
right of surviving spouse:

iv. Estate of Shannon: R drafted a will in 74 leaving all to his daughter and disinheriting all others if they contested the will. R later married L in 86 and died in 88 w/out changing will. L contested the will as a omitted spouse. Ct held for L, because L is an omitted spouse and there is a presumption there was no intent to disinherit and the daughter was not able to rebut that presumption. a disinheritance clause in a will does NOT apply to a testators subsequently acquired spouse unless –see 21610 above
omittes spouse case law
rights of surviving spouse:

i. CPC 21620 Ct will presume that decedent forgot to include a child born or adopted after the execution of all of the decedent's testamentary instruments. Child is entitled to a share of decedents estate equal to what they would have received if T died intestate, unless exceptions under 21621 apply
omitted children
rights of surviving spouse:

ii. CPC 21621 A child shall not receive a share of the estate under CPC 21620 if any of the following is established:
1. decedent's failure to provide for child was intentional and that intention appears in the testamentary instruments.
2. decedent provided for the child by transfer outside of the estate and the intention that the transfer be in lieu of a provision is show by evidence.
3. decedent had one or more children and devised substantially all the estate to the other parent of the omitted child.
omitted children
rights of surviving spouse:

iii. Azcunce v Estate of Azcunce: Rene Azcunce executed a will which established a trust for his spouse and his then born 3 children but did not contain a provision for children born later. Later Rene executed a codicil -it also did not contain a provision for after-born children. Ct holds the omission of Patricia was intentional. Ct says republication by codicil only applies when doing so carries out T's intent-here the codicil specifically incorporated the prior will so she intended the prior will to be republished (that by republishing the prior will in the codicil without providing for Patricia, she intended her to take nothing)
omitted children case law
rights of surviving spouse:

iv. CPC 21622 if decedent failed to provide for a living child because he believed the child was dead or was unaware of the birth of the child then the Child is entitled to a share of decedents estate equal to what they would have received if decedent died intestate
1. burden on child to prove by extrinsic evidence)
omitted chidlren
surviving spouse:

v. In re Estate of Laura: grandchildren challenged will on the ground that they were entitled to an intestate share of the estate as pretermitted heirs. CA statute only applies to children NOT all issue (so only the first generation down can be protected--only T's actual kids)
omitted children case law
rights of surviving spouse:

vi. Estate of Treloar: 1986 Josiah Treloar executed a will that provided for his daughter Evelyn. 1988 he removed her b/c she died. The will did not mention her 2 children Andrew and Peter, but it did mention their father Leon who was named executor of the will. The executor of the estate argued that b/c the 1988 will made a reference to Evelyn’s husband this is evidence that he had Evelyn and her children in mind but chose not to include them in the will. ct disagreed, T did not use his daughters name, nor did he use "son-in-laws" name in a bequest-he only used "son in law" to identify the individual he wanted to appoint as his executor. b/c Evelyn, Andrew and Peter were not mentioned in the 1998 will Andrew and Peter were pretermitted grandchildren and entitled to a share of the estate
omitted children case law
rights of surviving spouse:

i. a spouse can waive rights to succession, gifts under a will, rights to homestead, rights to family set aside, right to a pretermitted spouse share, interest under a non probate transfer (insurance, pension), etc
ii. A waiver may only be emended or revoked in writing-unless the waiver itself provides otherwise
waiver, CPC 141 Surviving Spouses Waiver
rights of surviving spouses:

1. Prenuptial agreement
2. b/c you want to protect kids from a previous marriage (and don’t want 2nd wife to take)
waiver:

2 common reasons for waiver
right of surviving spouse:

1. Must be in writing
2. Must be signed by spouse waiving their rights
3. The benefiting spouse (the dead spouse) must fully disclose their financial status and the waiving spouse must have independent counsel (a voluntary and conferred waiver)
4. Even if conditions of step 3 are not met-a court might still enforce the waiver if they find it is a fair and reasonable disposition and the waiving spouse had good bargaining power
waiver:

Requireents of spouses waiver
right of surviving spouse:

1. Must be in writing
2. Must be signed by spouse waiving their rights
3. The benefiting spouse (the dead spouse) must fully disclose their financial status and the waiving spouse must have independent counsel (a voluntary and conferred waiver)
4. Even if conditions of step 3 are not met-a court might still enforce the waiver if they find it is a fair and reasonable disposition and the waiving spouse had good bargaining power
waiver:

Requireents of spouses waiver
right of surviving spouse:

1. Must be in writing
2. Must be signed by spouse waiving their rights
3. The benefiting spouse (the dead spouse) must fully disclose their financial status and the waiving spouse must have independent counsel (a voluntary and conferred waiver)
4. Even if conditions of step 3 are not met-a court might still enforce the waiver if they find it is a fair and reasonable disposition and the waiving spouse had good bargaining power
waiver:

Requireents of spouses waiver