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161 Cards in this Set
- Front
- Back
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Seven major topics
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Execution of Wills, Revocation of Wills, Components of Wills, Interpretation of Wills, Intestate Succession, Rights of Surviving Spouse and Children, Bars to Succession
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Execution of Wills (validity of will): issues
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attested wills, holographic wills, testamentary capacity, and conflict of laws (out-of-state will)
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Attested wills: traditional formalities (5 elements)
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(1) will must be in writing (oral wills not OK); (2) signed by T (or 3d person in T’s presence and at T’s direction, or conservator under court order); (3) signing must be done in the presence of two witnesses both present at the same time; (4) witnesses must sign the will during T’s lifetime; and (5) witnesses understand that the instrument they signed is T’s will
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Three facts about witnesses to attested wills
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Witnesses do not have to sign in the presence of each other; do not have to sign in the presence of T; and T need not declare to witnesses “this is my will” because CA does not have a “publication” requirement
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CA exception to attested wills
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If T dies on or after Jan 1, 2009, if will does not satisfy elements 3, 4, or 5, will can still be admitted if proponent of will establishes by “clear and convincing evidence” that at the time T signed the will, T intended the will to constitute T’s will
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What if witness signs before T?
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If there is no issue of fraud or mistake, the will should be deemed valid under CA’s “substantial compliance” doctrine
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What does “presence” mean?
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Sight Presence: witnesses see T sign; or Conscious Presence: T signs within the witnesses hearing and the witnesses know what is being done
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What if the witness is an interested witness?
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The will is not invalid, but unless there are two other disinterested witnesses, a presumption arises that the witness-beneficiary secured the gift by wrongdoing
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What is an interested witness?
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witness who is a beneficiary under the will
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What if the witness-beneficiary rebuts, or cannot rebut, the interested witness presumption?
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If rebuts, no problem, witness-beneficiary takes the gift. If cannot rebut, he takes the amount as does not exceed what would be given by intestacy.
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What is a holographic will?
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Handwritten will
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What are the elements/formalities of a valid holographic (handwritten) will? (two)
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signed by T, and material provisions must be in T’s own handwriting
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What are “material provisions”?
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gifts made, and the beneficiaries’ names
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What are non-material terms?
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introductory clauses, appointment of an exector
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In a holographic will, a statement of testamentary intent (“This is my last will”) ________ be on the face of the will and in T’s handwriting
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need not
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What are three problems related to a statement of testamentary intent?
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writing lists just the names of people and, next to each name, an asset (extrinsic evidence is admissible to determine T’s testamentary intent); T writes a series of letters, and unclear whether just a series of letters or a holographic will (extrinsic evidence is admissible); testamentary intent is part of a commercially printed form will (CA Probate Code states not a problem)
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Does a holographic will require a date?
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No, but lack of date can create a problem with (1) inconsistent wills, and (2) capacity
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What if an undated holographic will is inconsistent with another will (either a dated holographic will, a dated witnessed will, or an undated witnessed will)?
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undated holograph is invalid to the extent of the inconsistency—unless holograph’s time of execution is established to be after the date of execution of another will
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What if there are two undated holographs?
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If you can’t establish which one came last, neither holograph is probated to the extent of the inconsistency
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If a holograph is undated, and if it is established that T lacked testamentary capacity at any time during which the will might have been executed, then …
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the holograph is invalid—unless it is established that it was executed at a time when T had testamentary capacity
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When can a will executed in another state be admitted into probate in CA? (three alternative rules)
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(1) If the will complies with CA’s formalities of execution; (2) If the will complies with the formalities of execution of the place where the will was executed; (3) if the will complies with the formalities of the place where T is domiciled at the time of execution
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Testamentary capacity: at the time of the will, testator must have ________, which means T must satisfy 4 elements: …
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capacity … (1) 18 years of age, (2) understand the extent of her property, (3) know the natural objects of her bounty (i.e., spouse, issue, parents, and those whose interests are affected by the will), (4) know that she is executing a will, but does not have to know all the legal technicalities of the will (e.g., RAP)
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Consequences of no capacity
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entire will is invalid, and property will pass by intestate succession, unless testator had a valid prior will that was purported revoked by a second will (the one for which testator did not have capacity)
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What to look for to determine no capacity?
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testator has a conservator appointed, or diagnosed with a mental disorder (not conclusive, still must apply the 4 elements)
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Testamentary capacity is affect by 3 other things …
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insane delusion, fraud, and undue influence
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What is an insane delusion and what are the consequences?
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false belief that was a product of a sick mind … only that part of the will that was affected by the delusion is invalid (the invalid part will either go to the residuary devisee or by intestate succession)
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What is a residuary gift (devisee)?
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The residuary gift is that part of the will not otherwise expressly disposed of. For example, “Blackacre to A, Whiteacre to B, and the residue to C.”
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What is fraud?
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Misrepresentation: there must be a representation; of material fact; known to be false by the wrongdoer; for the purpose of inducing action or inaction; and in fact induces the action or inaction desired
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What are the three types of fraud?
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Fraud in execution, inducement, in preventing testator from revoking the will
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What is fraud in execution? (2 scenarios)
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Someone forges T’s signature to a will; T given a document to sign that is purportedly non-testamentary in nature, but in fact is, and T signs it
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Consequences of fraud in execution
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Entire will is invalid
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What is fraud in the inducement?
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The wrongdoer’s representations affects the contents of T’s will (e.g., son tells T-father that charity is being investigated, causing son to get everything)
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Consequences of fraud in the inducement
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only that part of the will affected by the fraud is invalid (the invalid part will either go to the residuary devisee OR by intestate succession OR to the intended beneficiary via constructive trust)
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Distinguishing fraud in execution versus fraud in the inducement
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Execution: T does not intend the document to be his will; Inducement: T intends the document to be his will, but the contents are affected by misrepresentation
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What is fraud in preventing T from revoking?
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T’s will leaves everything to son, but T later changes her mind and wants to leave everything to charity; due to son’s fraud, T does not revoke the will
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Consequences of fraud in preventing testator from revoking
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Court will not probate the will, and thus the property goes to the heirs; simultaneously, the court also will decree that the heir is a constructive trustee who has one duty: to transfer the property to the intended beneficiary as determined by the court
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What is undue influence?
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T’s free agency is subjugated
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What are the three types of undue influence?
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Prima facie case; presumption; statutory (can always discuss the first 2, and usually all three)
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What is a prima facie case of undue influence? (4 elements)
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SOAU
Susceptibility: T has a weakness such that he is able to have his free will subjugated (e.g., psychological, financial, physical); Opportunity: wrongdoer had access to T; Active participation: wrongful act that gets the gift (e.g., use of force); Unnatural Result: wrongdoer takes a devise, and this person ordinarily would not be expected to take a devise |
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What is presumption undue influence? (3 elements)
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A confidential relationship exists btw T and wrongdoer (e.g., attorney-client); Active participation; Unnatural result
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Consequences of finding undue influence by prima facie case or by presumption
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only that part of the will affected by the undue influence is invalid (the invalid part will either go to the residuary devisee OR by intestate succession OR to the intended beneficiary via constructive trust)
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Distinguish undue influence from fraud in the inducement
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Fraud: you have to LIE; Undue Influence: wrongdoer is being perfectly honest: “Leave me all your property or I will kill your family.”
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What is statutory undue influence?
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CA generally invalidates a donative transfer (transfer by will or trust) from a transferor (testator or settlor) to: (a) person who drafted the instrument (will or trust); (b) a person related to, or married to, the drafter; (c) person who is in a fiduciary relationship with the transferor and who transcribes the instrument; (d) care custodian of a “dependent adult” who is the transferor
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What is a dependent adult?
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Someone older than 64 years, or at least 18 years old who has a physical or mental disability
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Statutory undue influence does not apply if:
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(a) Transferor is related to, or married to, the drafter; or (b) the instrument is reviewed by an independent attorney, or (c) court determines, upon clear and convincing evidence, that the transfer was not the product of wrongdoing
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Consequences of finding statutory undue influence?
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Transferee does not take the gift, but only to the extent that the gift exceeds that person’s intestate share; the portion that does not pass to the transferee passes to the residuary devisee, if any, or, if no residue, to the heirs at law by intestate succession
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What are three types of mistake?
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Mistake in content, mistake in execution, or mistake in inducement
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What is mistake in content and what are the consequences?
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Wrong beneficiary is name, or wrong gift is made. If words are accidently left out (“to John” rather than “to John and Mary”), no remedy, because courts do not rewrite wills. If words are accidently added, (“to John and Mary” rather than “to John”, remedy may be given, because the court is not rewriting the will, just excising a part of it.
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What is mistake in execution, and what are the consequences?
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T signs the wrong document. The will not probate, because T did not intend the document to be a will.
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What is mistake in inducement and what are the consequences?
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A gift is made or not made based on T’s erroneous beliefs (e.g., T would have left John $1000, but doesn’t because T thinks John is dead). Consequence is John takes nothing, unless both the mistake, and what T would have done but for the mistake, appear on the face of the will.
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How to revoke a will?
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Subsequent will, physical act, or operation of law
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What is a Dependent Relative Revocation (DRR)?
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Cancels a revocation based on mistaken assumption of law or fact. (T executes Will #1. Thereafter, T executes Will #2 and subsequently revokes Will #1, thinking that Will #2 effectuates his intent. But T is mistaken. Will #2 is invalid or fails to effectuate T’s intent (because, for example, of the interested witness rule). DRR allows the court to ignore the revocation of Will #1.)
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Two situations of DRR for the bar?
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First: Will #1 is revoked by physical act. Second: Will #1 is revoked by subsequent instrument.
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Requirements for DRR?
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T revokes Will #1, in the mistaken belief that a substantially identical will or codicil effectuates her intent. Then by law, the revocation of the first will be deemed condition, dependent, and relative to the second effectuating T’s intent.
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Under DRR, what happens if Will #1 is revoked by physical act by being destroyed, and thus Will #1 no longer exists?
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Under CA’s lost will provisions, lost will or accidentally destroyed will can be probated if at least one witness testifies as to the terms of the will. This witness does not necessary have to be one of the attesting witnesses. For example, the witness can be the lawyer who drafted the will.
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Revocation of wills: elements for revocation by physical act?
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(1) Will must be burned, torn, cancelled (crossing out), destroyed, or obliterated (erasing); (2) T must have the simultaneous intent to revoke (not accidentally destroying will and then saying “That’s okay because I wanted to revoke it anyway”); (3) act must be done either by T, or by someone in T’s presence and at his direction
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What happens when there is both a cancellation (crossing out) and interlineations (writing between the lines) of an attested will that leaves “leaves $1000 to Mary”?
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If T crosses out $1000 and interlineates $1500 and signs his name, no holographic codicil on top of a formal will, because the material provisions (gifts and names of the beneficiaries) are not in T’s own handwriting. But DRR can save Mary’s gift so that Mary takes the original $1000. But if the interlineation is less than the cancelled provision (e.g., $900), DRR will not be used, and Mary takes nothing.
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Cancellation to increase a gift is ________.
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Prohibited. Rule: You cannot increase a co-beneficiary’s gift by cancellation. E.g., “I leave my farm to X and Y,” and T subsequently cancels out Y’s name. X takes ½ of the farm, and ½ goes to the residuary devisees or, if none, by intestacy.
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When there are duplicate originals, not a photocopy, but where T and witnesses sign the will, then do it again on a duplicate original, and T revokes by physical act one of the duplicate originals …
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The other duplicate original also is revoked, as a matter of law.
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What is the consequence of finding a will in a mutilated condition?
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If a will is found in a mutilated condition at T’s death, and when last seen it was in T’s possession, there is a rebutable presumption that T mutilated the will with the intent to revoke the will.
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Revocation of wills: revocation by subsequent written instrument: two ways …
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express or implied
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What is express revocation by subsequent written instrument?
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Will #2 expressly revokes Will #1. E.g., “I hereby revoke all previously executed wills.”
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What is implied revocation by subsequent written instrument?
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Will #2 revokes Will #1 by implication if Will #2 totally disposes of T’s estate.
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What is the first situation in which revival can arise?
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Situation #1: T executes Will #1, and thereafter Will #2, which revokes #1 (expressly or impliedly). T thereafter revokes #2 by physical act. In CA, Will #1 is not automatically revived; rather, Will #1 is revived only if testator manifests a intent to revive Will #1. Oral statement at the time Will #2 was revoked are admissible.
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What is the second situation in which revival can arise?
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Situation #2: T executes Will #1, and thereafter Will #2, which revokes #1 (expressly or impliedly). T thereafter revokes #2 by codicil. In CA, Will #1 is not revived unless it appears from the terms of the codicil that T wanted Will #1 revived.
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Revocation of wills: revocation by operation of law: 4 issues …
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omitted child; omitted spouse; omitted domestic partner; final dissolution of marriage or domestic partnership
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What is an omitted or pretermitted child, and what are the consequences?
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A child born or adopted after all testamentary instruments are executed, and not provided for in any testamentary instrument. Consequences: child receives a share of the decedent’s estate equal in value to what the child would have received if the decedent had died without having executed any testamentary instrument (will, codicil, or intervivos trust). Plainly, child receives an intestate share of assets decedent owned at death + assets held in any intervivos trust.
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3 Exceptions where omitted child will not take a statutory share …
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(1) Decedent’s failure to provide for the child in any testamentary instrument was intentional, and that intention appears from the instrument. (2) At the time of execution, T had >=1 children and transferred by will or revocable inter vivos trust substantially all of his estate to parent of the omitted child. (3) Decedent provided for the child by transfer outside the testamentary instrument with the intention that the transfer be in lieu of any testamentary provision.
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What is an omitted spouse, and what are the consequences?
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A surviving spouse who married the decedent after the execution of all testamentary instruments, and is not provided for in any testamentary instrument. Consequences: spouse receives a share of the decedent’s estate equal in value to what the spouse would have received if the decedent had died without having executed any testamentary instrument (will, codicil, or intervivos trust).
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What is the statutory share that the omitted spouse receives?
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½ of CP owned by the decedent at death or in any revocable inter vivos trust (omitted spouse now ends up with 100% of CP); ½ of the quasi-CP owned by decedent at death or in any revocable inter vivos trust (omitted spouse now ends up with 100% of the quasi-CP); share of the SP of the decedent equal in value to that which the spouse would have received if the decedent had died without ever having executed any testamentary instrument, capped at ½ of SP
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3 Exceptions where omitted spouse will not take a statutory share …
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(1) Decedent’s failure to provide for the spouse in any testamentary instrument was intentional, and that intention appears from the instrument. (2) Decedent provided for the spouse by transfer outside the testamentary instrument with the intention that the transfer be in lieu of any testamentary provision. (3) Omitted spouse signed a waiver (a voluntary relinquishment of a known right).
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3 elements of a wavier …
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must be in writing, signed by the waiving spouse before or during marriage; and full disclosure by decedent of decedent’s finances; and independent counsel by the waiving spouse. But even if there is no disclosure by T or independent counsel, the waiver is still enforceable if (i) the waiving spouse had or should have knowledge of T’s finances, or (ii) if the wavier was fair. In no event will the waiver be enforced if the wavier is unconscionable.
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What are domestic partners?
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(1) Partners must be (i) of the same sex, or (ii) of the opposite sex and at least one person is at least 62 years of age, AND (2) Partners must have filed a declaration of domestic partnership with the Secretary of State.
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Domestic partners have the ________ rights and obligations as married persons. So, the rules for omitted domestic partners are the ________ as for omitted spouses.
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same … same
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Final dissolution of marriage or domestic partnership: four rules regarding testamentary gifts:
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(1) By operation of law, there is a revocation of the devise to the spouse or domestic partner if there is an annulment or final dissolution of marriage, or domestic partnership. (2) Legal separation does not count. (3) The devise is reinstated if the will is unchanged and the testator remarries the former spouse, or reestablishes another domestic partnership with the former domestic partner. (4) These rules don’t apply if the will expressly states otherwise
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For a omitted child, spouse, or domestic partner to take its statutory share, other gifts will have to be …
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abated or reduced.
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Components of a will: What is integration?
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Which papers make up the will.
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What are the elements of integration? (Two)
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Intent (T must have intended for the papers in question to be part of the will) and Presence (papers must have been physically present at the time of execution)
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How to prove integration (2 ways)
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Physical connection among the pages (e.g., stapled together); or Logical connection (last word on page 1 makes sense in relation to first word on page 2)
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Components of a will: What is incorporation by reference?
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Non-integrated writing is given testamentary effect and becomes part of the will
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Elements to incorporate by reference (four):
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document/writing; document must have been in existence when the will was executed; document clearly identified in the will; and will shows intent to incorporate
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Does the writing/document being incorporated have to be valid?
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No, can be an invalid deed, contract, or will
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What are Acts of Independent Significance, and when are they an issue?
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Who the beneficiary is, or what gift is given may be given meaning by acts of significance independent from T’s will (e.g., “I leave all my property to the church I am a member of at the time of my death.”). We need parol evidence. Acts of independent significance allow us to fill in the blanks to T’s will with parol evidence that is trustworthy.
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When to use the doctrine of Acts of Independent Significance: ask yourself this question:
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Even without the will, would this act still have occurred?
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What’s a will where neither Incorporation by Reference nor Acts of Independent Significance work
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“I leave all my property to the people I will name on a note tomorrow.”
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If neither Incorporation by Reference nor Acts of Independent Significance work, is there an alternative?
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Yes, Section 6132 – elements: (1) writing must be referred to in a will, dated, and either signed or handwritten by T; (2) writing must describe the items and beneficiaries with reasonable certainty; (3) writing may be executed before or after the will; (4) writing disposes of tangible personal property (no cash or business property) valued, at time of T’s death, at <=$5k per item and <=$25k in the aggregate
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What is a pour-over will?
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Part or all of T’s estate is devised to the trustee of an inter-vivos trust, to be administered under the terms of that trust
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How to validate a pour-over provision?
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Incorporation by reference (if in existence when the will was executed and not modified thereafter), act of independent significance (if modified), and UTATA (statute says so long as you have a valid trust, which was in existence before or at the time of execution, the pour-over provision is valid)
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Components of a will: What is a codicil?
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a testamentary instrument executed in compliance with the CA Probate Code which modifies, amends, or revokes a will
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What is the effect of a codicil?
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A codicil republishes a will. This means that codicil causes the will to speak from the date that the codicil is executed.
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On the bar exam, republication comes into play in what two scenarios
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(1) pour-over wills and incorporation by reference, and (2) pretermission problems
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What is a typical problem involving incorporation by reference and codicil republication?
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Jan 1 – inter-vivos trust; Jan 2 – T executes a will with a pour-over provision; Jan 3 – trust is amended, so incorporation does not work because the trust as modified was not in existence when the will was execute; Jan 4 – T executes a codicil that republishes the will. Because the codicil republishes the will, the codicil causes the will to speak from Jan 4, and the incorporation now works.
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What is a typical problem involving pretermission and codicil republication?
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Year 1 – will executed; Year 2 – child is born, or T marries or enters into a domestic partnership (child, spouse, or domestic partner is pretermitted); Year 3 – a codicil is executed which republishes the will. Because the codicil republishes the will, there is no pretermission.
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What is an alternative theory to prevent pretermission?
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Because a codicil is itself deemed to be a testamentary instrument, the birth of the child or marriage or domestic partnership took place before the codicil was executed. This alone (without any discussion of republication) precludes the finding of a pretermission. Discuss both theories.
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If testator executes a will, then executes a codicil, and subsequently revokes his codicil, there is a rebutable presumption that …
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T intended to revoke only his codicil
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If testator executes a will, then executes a codicil, and subsequently revokes his will, there is a rebutable presumption that …
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T intended to revoke the will and codicil
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Interpretation of Wills: what is an example of an ambiguity?
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No one or nothing fits the description, or two or more persons or things fit the description.
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What are the two types of ambiguities?
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Latent – on the face of the will, there is no problem. Everything seems fine on the face of the will. Introduce parol evidence to establish the ambiguity, then you introduce the evidence a second time to determine T’s intent. Patent – ambiguity is apparent on the face of the will.
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In CA, how is ambiguity resolved?
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By statute, introduce parol evidence for any type of ambiguity to determine what T’s intent was.
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Ademption (revocation by change in property holdings) involves issues …
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Classification; Ademption by extinction; Ademption by satisfaction; Advancements
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Classification: there are 4 types of gifts
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(1) Specific devise (gift of a particular item: something unique about it, and T must have the intent the beneficiary take this particular thing, and nothing else) (e.g., real property, “100 shares of my Xerox to Bob”); (2) General devise (payable out of the general assets of the estate) (“100 shares of Microsoft to Bob”); (3) Demonstrative devise (hybrid; gift from a particular fund, but if that is not enough, the executor can resort to general property); (4) residuary devise
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What is Ademption by extinction?
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Common law test (not in CA): specific gift fails because T did not own the property at T’s death = gift failed. CA: intent is important not just for determining whether a gift is general or specific, but a second time in determining whether T intended the gift to fail
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There is no ademption by extinction in CA in the following situations? (three)
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(1) securities changing form (because of mergers, stock splits, stock dividends) because T did not change the stock, the corporation did; (2) conservator sells off the assets because T did not sell the property (e.g., T devises Blackacre and thereafter conservator sells off Blackacre, so beneficiary takes the net sales price of Blackacre); (3) eminent domain award, casualty award, or installment sale of property in which T holds the deed of trust as security for the sale after T’s death
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Is there ademption by extinction for eminent domain award, casualty award, or installment payments received during T’s lifetime?
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If you can trace the proceeds into one bank account, then the beneficiary may argue that by making the proceeds easily traceable, testator intended no ademption by extinction. If tracing is impossible, then possible ademption by extinction for proceeds paid during T’s lifetime.
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For all other situations, to avoid ademption by extinction …
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(a) try to classify the gifts as general, and (b) try to trace
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What is Ademption by satisfaction?
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T gives the beneficiary an inter-vivos down payment on the devise. E.g., T executes his will leaving $1000 devise to beneficiary. T later goes to beneficiary and says, “I’ve left you a $1000 devise in my will. But why should you have to wait for me to die? Here is $100 on account.” If the $100 is a satisfaction, then when T dies, beneficiary will not receive the $1000 per the will, but only $900.
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How to establish a satisfaction: 4 alternative ways:
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(1) The will itself provides for a deduction of the inter vivos gift. (2) T declares in a contemporaneous writing that the gift is a satisfaction. (3) Beneficiary acknowledges in a writing (at any time) the satisfaction. (4) The property given in the satisfaction is the same property that is the subject of a specific gift to the beneficiary (this is an ademption by satisfaction and also by extinction).
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What if beneficiary receives a satisfaction but predecease the testator?
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Rule: Where the issue of the predeceased beneficiary takes the devise under the anti-lapse statute, the issue of the predeceased beneficiary is treated as if he had received the satisfaction, unless T’s will or contemporaneous writing states otherwise.
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How to value the satisfaction if not made in cash?
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If the value of the satisfaction is expressed in the contemporaneous writing of the testator or in a contemporaneous writing of the beneficiary, that value is conclusive. In all other cases, the property is valued at its fair market value, measured at time the transferee came into possession of the property.
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The common thread for situations with no ademption by extinction in CA is …
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T did not intent the gift to fail
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Restrictions on testamentary dispositions: protection is given to the surviving spouse or domestic partner based on the ________.
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community property system
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In the absence of death or divorce or termination of domestic partnership, quasi-community property is treated as …
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separate property of the acquiring spouse or acquiring domestic partner
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non-acquiring spouse has ____ testamentary power over the acquiring spouse’s quasi-CP during ________
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no … the lifetime of the acquiring spouse
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How does the probate definition of quasi-community property differ from the definition for divorce?
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For divorce purposes, quasi-CP is all real property, wherever located. For decedents’ estate purposes, quasi-CP is limited to real property located in CA.
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Four rules to protect the surviving spouse or domestic partner …
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(1) T can dispose of only ½ of CP (surviving spouse owns the other ½); (2) T, assuming T is the acquiring spouse, can dispose of only ½ of quasi-CP (surviving spouse owns the other ½); (3) Widow’s election; (4) protection regarding illusory transfers of quasi-CP and the widow’s election
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Widow’s (widower or surviving domestic partner) election arises
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when T attempts to dispose of more than ½ the CP or ½ the quasi-CP. In such case, the widow may invoke the widow’s election, meaning that widow may take “under the will” (accept the gift given in T’s will in lieu of her statutory right – ½ CP and ½ quasi-CP), or “against the will” (renounce all benefits given in the will and confirm her rights to ½ of CP and ½ of quasi-CP)
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Transfers of quasi-CP. General Rule and Exception
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General Rule: inter-vivos transfer by decedent (the acquiring spouse) of the quasi-CP to a 3d person without consideration IS allowed. Exception: transfer is not allowed, if the transfer is deemed illusory, meaning the decedent (the acquiring spouse) retained some interest or control over the property (e.g., ownership interest, a use, or a co-tenancy)
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Intestate succession: surviving spouse/domestic partner inherits
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decedent’s ½ of CP and quasi-CP; SP (100% if decedent leaves no issue, parents, brothers or sisters, or issue of deceased brother or sister; ½ if decedent survived by 1 child or issue of predecease child; 1/3 if decedent survived by 2+ children and 2/3 to children; ½ if decedent survived by no issue but leaves parent or their issue)
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Share not passed to surviving spouse: Intestate scheme/order
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Issue, Parents, Issue of Parents, Grandparents, Issue of Grandparents
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Whenever issue take by intestacy, or if a will or trust provides for issue to take without specifying the manner – for each generation level …
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distribute “per capita” with right of representation by issue if an individual at that level is deceased (starting with the general level where at least one individual is alive)
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If a will or trust calls for a distribution “per stirpes” or “by right of representation” or by “representation,” we make a different distribution …
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Distribute at the first level, even if everyone is dead, so long as they left issue
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Special problems for intestate succession (4)
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adoption, stepchildren, half-bloods, advancement
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Adopted child is always treated as ________ of the adopting parents, but adoption ______ the relationship between the adopted child and her natural parents, unless ________.
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a natural child … severs … adoption is by the spouse or domestic partner of the natural parent, or after the death of either of the natural parents
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Stepchildren and foster children are treated as _______ if 3 elements are satisfied: …
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having been adopted … (a) relationship began during the child’s minority; (b) it continued throughout the parties’ lifetimes; and (c) it is established by clear and convincing evidence that the stepparent or foster parent would have adopted but for a legal barrier.
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Non-martial children: In CA, marital status of the parents is ________.
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irrelevant
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In a domestic partnership, a parent-child relationship is established as to the non-birthing partner by means of one of several presumptions: …
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child born during the domestic partnership is presumed to be the child of the non-birthing domestic partner; if the non-birthing domestic partner and the birthing domestic partner formed after the child’s birth and (i) the non-birthing domestic partner is named on the birth certificate, or (ii) the non-birthing domestic partner makes a voluntary promise to pay child support or is ordered to do so by the court
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Halfbloods are ________, and inherit ______ as the whole blood.
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relatives who have only 1 common parent … the same
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What is an advancement?
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an inter vivos down payment made by an intestate to an heir apparent (like satisfaction). E.g., Intestate goes to the heir-apparent and says, “When I die you will inherit $1000 from me. But why should you have to wait for me to die? Here is $100 on account.” If the $100 advancement has been made, when the intestate dies, the heir will not inherit the full $1000, but only $900.
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Establishing an advancement: 2 alternative ways:
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intestate declares in a contemporaneous writing that the gift is an advancement; heir acknowledges in a writing (at any time) that the gift is an advancement
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What if beneficiary receives an advancement but predecease the testator?
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Rule: The issue of the heir-apparent are not treated as having received an advancement, unless the advancement provides otherwise. Opposite of a satisfaction.
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How to value the advancement if not made in cash?
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If the value of the advancement is expressed in the contemporaneous writing of the intestate or in a contemporaneous writing of the heir-apparent, that value is conclusive. In all other cases, the property is valued at its fair market value, measured at time the transferee (heir) came into possession of the property.
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Who can take: can posthumous child (child conceived during the lifetime of the intestate or testator, but born after the death of the intestate or testator) take?
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Yes, posthumous children are deemed heirs of the intestate and beneficiaries of testator’s will
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Lapse and Anti-Lapse: what is the Rule of Lapse?
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If the beneficiary does not survive testator, beneficiary’s gift lapses, or fails. Thus, if a gift lapses, unless a contrary intent is expressed in the will, the gift falls into the residue, if there is one. Otherwise, the gift goes by intestacy.
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If an anti-lapse statute applies, the rule of lapse ______ apply.
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will not
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California’s Anti-Lapse statute applies only
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If the devisee who predeceased the testator was “kindred” (blood relative) of the testator; or kindred of a surviving, deceased, or former spouse or domestic partner of the testator (but not the spouse or domestic partner); and this predeceased devisee leaves issue. In such a case, the issue of that predeceased devisee will step into the shoes of that predeceased devisee.
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In California, both the rule of lapse and the anti-lapse statute applies to …
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wills and also to revocable trusts.
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In California, the anti-lapse statute ______ to class gifts.
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applies … Example: T executes a will devising Blackacre “to my children.” At the time of execution, T had three children, A, B, and C. After execution, C predeceases T, and C leaves two children, C1 and C2. Thus, at T’s death, the survivors are A, B, C1, and C2. Under CA’s anti-lapse statute, C’s gift does not lapse. C1 and C2 take 1/3 (1/6 each).
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Simultaneous death problem
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If the devolution of property is dependent on one person surviving another, and it cannot be determined by clear and convincing evidence who survived whom, then it is deemed the one person did not survive the other.
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5 situations where there is a simultaneous death problem
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(1) T and devisee die simultaneously (DS) (e.g., plane crash) - devisee is deemed to have predeceased T; (2) A and B are joint tenants with right of survivorship and DS - sever JT, ½ to each’s estate; (3) spouses/domestic partners have wills and own CP or quasi-CP and DS - ½ CP and quasi-CP distributed through each’s estate; (4) life insurance policy and insured and beneficiary DS - if no alternative beneficiary named, policy proceeds are paid to insured’s estate, unless policy premiums are paid with CP or quasi-CP, then ½ to each’s estate; (5) 120-hour rule
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What is the 120 hour rule?
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Intestate and heir die, and the 120-hour rule: For any heir to take, the heir must survive the intestate by 120 hours. If it cannot be determined by clear and convincing evidence that the heir has survived the intestate by 120 hours, it is deed that the heir did not survive the intestate, and the heirs are determined accordingly.
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What are pretermitted children?
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A child omitted from pre-birth will – a child born or adopted after all testamentary instrument (will, codicil, or trust) are executed and not provided for in any testamentary instrument.
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What do pretermitted children take?
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intestate share of the estate, unless (1) omission was intentional as shown on the will, (2) T had other children and left estate to parent of omitted child, or (3) T provided for child by transfers outside the will
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What is the opposite of a pretermitted child?
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Corollary, a child born or adopted before all testamentary instruments are executed and not provided for in any instrument is not pretermitted, and takes nothing. Exception: if the only reason the child was not provided for was because T erroneously thought the child to be dead or non existent
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Bars to succession: killers (and their issue) cannot take when ________. What proof is needed?
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they feloniously and intentionally kill the decedent … proof: conviction is conclusive, otherwise, the probate court determines guilt by a preponderance of the evidence
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Contracts to make a will or devise, or to not make a will or devise: scenario …
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T executes a will that states, “I leave Blackacre to Abel.” There is a contract between T and Abel providing that T will not revoke his will. If T revokes, T is in breach of contract, and upon T’s death, Abel may sue T’s estate for breach of contract.
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Requirements for contract to make a will, or to not revoke a will: five alternative ways
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(1) will or other instrument (e.g., trust) states the material provisions of the contract; (2) there is an express reference in the will or other instrument to the contract; (3) there is a writing signed by the decedent evidencing a contract; (4) there is clear and convincing evidence of an agreement btw decedent and promisee that is enforceable in equity (estoppel); (5) there is clear and convincing evidence of an agreement btw decedent and a 3d person for the benefit of the claimant that is enforceable in equity (estoppel)
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What is an example of a will that states the material provisions of a contract?
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T’s will states, “in consideration of the $5000 Abel has given me, I have promised to devise Blackacre to Abel, and I hereby do devise Blackacre to Abel.”
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When does the cause of action accrue for contract to make a will, or to not revoke? Exception?
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when the decedent dies. Exception: cause of action accrues during decedent’s lifetime if the decedent is engaging in conduct which would be fraud on the promisee (e.g., T contracts with Abel to devise Blackacre to Abel, but later sells Blackacre with the intent to dissipate the funds).
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What is a joint will?
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Will of 2+ people on one document, but provisions do not have to be reciprocal (when the first person dies, the will is probated; when the second person dies, the will is probated again)
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What are mutual wills?
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Separate wills of 2+ people that are reciprocal (e.g., H&W execute their own separate wills. H leaves everything to W. W leaves everything to H.)
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Does the execution of a joint will, or mutual will, create a presumption of a contract to not revoke or make a will?
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No, but it may be evidence of a contract, in conjunction with other factors
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Remedies available to promisee for breach of contract to not revoke or make a will …
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(1) Damages (plaintiff can sue decedent’s estate for damages); (2) Specific performance (P can seek to force the executor to comply with the terms of the contract); (3) Constructive trust remedy (court can probate the will as it is, giving the property to the devisee, and make the devisee a constructive trustee, who will be obligated to transfer the property to the promisee of the contract)
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What does the beneficiary take? 5 issues
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after-acquired property; increase during Testator’s lifetime; increase after Testator’s death and during probate; abatement; and exoneration
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What is after acquired property?
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Property acquired after the will was executed. A will passes all property T owned at death, including after-acquired property.
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What happens when there is an increase during T’s lifetime?
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Stock dividends or splits paid during T’s lifetime go to the beneficiary if the stock is owned by T at T’s death.
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What happens when there is an increase after T’s death and during probate?
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For specific devises, all increases go to the beneficiary: stock dividends, stock splits, rents; cash dividends; and interest on indebtedness. For general devises, the general rule is general devisees do not receive any increase. Exception: general pecuniary gifts (gifts expressed in a dollar amount) earn interest if not distributed within one year after T’s death.
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What is abatement and when does it arise?
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Process by which certain gifts are decreased. Arises when it is necessary to pay for the share of the omitted child, spouse, or domestic partner.
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Order of abatement for omitted child, spouse, or domestic partner
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(1) abate property not passing by the decedent’s will or revocable inter-vivos trust; (2) abate from all beneficiaries of T’s will and revocable inter-vivos trust pro rata (e.g., estate is valued at $90k. T had 3 children, A, B, and C. A and B were provided for in the will and given $45k each. Child C was pretermitted. C’s statutory share is $30k (1/3 of $90k). A and B will have their gifts abated by $15k.)
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What is exoneration and when does it arise?
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Debt is extinguished. Arises when T devised a specific gift subject to an encumbrance (e.g., mortgage) for which T was personally liable. Under C/L, executor must automatically pay off the debt before passing the property to the beneficiary, but under CA law, no automatic exoneration. In CA, the devisee takes the specific gift subject to the encumbrance, unless T’s will states that the specific gift is to be exonerated.
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Will substitute: what is a gift causa mortis and what are the requirements?
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Gift made in contemplation of imminent death. Only personal property, not real property, and donor must deliver the property to the donee. Delivery can be one of three forms: actual, symbolic (something representative of the corpus given to the done, e.g., bank document evidencing ownership), or constructive (key that unlocks a box)
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What kind of trust is a will substitute?
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Totten trust
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