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104 Cards in this Set

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What are the five big issues you want to review first?
1) Is there a valid will?

2) What documents constitute the will?
-incorporation by reference?
-acts of independent significance

3) Defenses to the Will?
-Fraud, Mistake, Undue Influence

4) Has the will be revoked, republished, or revived and does the doctrine of dependent relative revocation apply?

5) If there is no valid will, intestate succession applies.

What three areas must be present for there to be a valid will?
A. Testamentary Capacity

B. Present Testamentary Intent

C. Formalities
When must testamentary capacity exist for a valid will?
At the time the will was executed. (present testamentary capacity)
What are the requirements for testamentary capacity to be met?
1) Age: 18
2) Legal Capacity (ability to understand):
a) the EXTENT of his property
b) the NATURAL objects of his bounty
c) the nature of his DISPOSITION
d) not suffering from an INSANE DELUSION (such as false or irrational belief; which is the product of a sick mind; unsupported by any evidence; that affected T's will.
What determines whether T had present testamentary intent?
Whether T had the requisite testamentary intent at the time of execution is a QUESTION OF FACT to be determined by examining the will and the surrounding circumstances.
What is the key question to ask in determining whether T had present testamentary capacity?
Did T intend to make a disposition of property effective at death?
What is a conditional will and how does it relate to testamentary capacity?
A will may be CONDITIONAL on the happening of a certain event but courts may construe such language to be a mere recitation of the reason for making the will to avoid intestacy. Extrinsic evidence is usually admitted.
What formalities are needed for a valid will?
Depends on if it is an execution for a formal will or a holographic will.
What is the main presumption made with respect to formal wills?
*If everything on face of will appears in order there is a strong presumption that the will has been validly executed.
What are the formalities for a formal will?
1) Writing: required

2) Signature of T: must either sign the will anywhere or have someone sign it for him at his direction and in his presence.

3) T's signing or acknowledgment (confirmation of his signature) must be in the presence of two competent witnesses both of whom are consciously present at the same time.
What is the conscious presence test and how is it met?
1) signing or acknowledgment must be in hearing distance of Ws;

2) W's must be aware of what is occurring;

3) T's signing & W's signing of will must be a continuous transaction.
What is the interested witness?
An interested witness is a witness to a will who receives a beneficial disposition under the will.
What is the general rule with respect to the interested witness?
The general rule is that an interested necessary (not superfluous)witness to a will cannot take more than that beneficiary would have received had their been no will.
What is the UPC rule with respect to the interested witness?
The UPC does not invalidate the will or the bequest to the interested witness, but considers the interest of the necessary witness a factor to be considered in determining whether undue influence or fraud has been exerted on the testator.
Is an executor of a will deemed to be an interested witness?
No, the fee received by the executor is compensation for services rendered.
What is a holographic will?
A holographic will is a will in the handwriting of the testator and signed by the testator, but unattested by witnesses.
What is the general and UPC rule with respect to holographic wills?
The general and UPC rule is that a will which does not comply with the statutory formalities is valid as a holgraphic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.
What is a nuncupative will?
A nuncupative will is oral. Generally, a nuncupative will must be a disposition of personal property by a soldier in actual military service or a mariner at sea.

What documents constitute the will?
*Always consider the three I's
1) Integration
2) Incorporation By Reference
3) Acts of Independent Significance
What is integration?
Interegration is the process of bringing together separate papers into a single, entire will, validated by a single act of execution.
What are the requirements for a valid integration?
1) Physical presence of all papers at the time of execution;
2) Intent to integrate papers;
3) Presumptions
4) Physcial connection of the papers;
5) Natural flow of paragraphs & sentences & pages;
6) Recitations in attestation as to the substance/length of the will;
7) sequence in numbering consecutive pages.
What is incorporation by reference?
Incorporation by reference is the process of incorporating papers mentioned in the will but not physically present at the time of execution.
What are the requirements for incorporation by reference?
1) In existence at the time of execution of the will;

2) Referred to explcitly by the will (must be identified & described w/ reasonable certainty)

3) intent to incorporate into overall testimentary plan.
What is a codicil?
A codicil is a testamentary instrument executed after a will with the applicable testamentary formalities and with the intent to modify, alter or amend the will.
Must the formal requiremnts of a will be met?
Yes, the formal requirements of a will must be met BUT a will and a codicil may be executed in a different manner (e.g. formal will: holographic codicil)
When does the will "speak" when a codicil is introduced?
The will speaks as the date of the codicil (codicil republishes prior will) unless the result would be clearly contrary to T's intent.
What is the effect of a codicil on an invalid will?
A validly executed codicil validates an invalid will if the codicil refers to it with sufficient certainty to identify and incorporate it, or if the codicil is on the same paper as the invalid will.
What are Acts of Independent Significance?
Testator may, in his will refer to extrinsic acts and/or events which are not TESTAMENTARY in nature: may be acts to be performed in the future.
What is the purpose and effect of acts of independent significance?
Allows beneficiaries under will to be named or changed: "I leave my property to the persons living in my household at my death"
1) Allows property to likewise be named or changed: "I leave to B an amount equal to the net profits of my business in the year of my death."
What is the test for Acts of Independent Signifiance?
Does the extrinsic fact or event in question HAVE SUFFICIENT LEGAL SIGNIFICANCE APART FROM THE WILL?

What is a pour over trust?
A pour over trust is an attempted testamentary gift to a pre-existing trust; an attempt by decedent to have the assets of his estate added to the corpus of a trust which he (or a 3rd party) created during his lifetime.
When the intervivos trust was in existence when T executed the will & will does not modify the trust, then courts have sustained such trusts on two theories:
1)Incorporation by Reference: reference in the will incorporates a preexisting trust into a testamentary plan;

2) Independent Significance: act of establishing a preexisting trust has legal significance apart from the will.
But where T modifies the preexisting trust after executing will, courts are split as to the effect of the modification on the will:
1) Some courts invalidate the entire testamentary gift;

2) Others uphold the gift but disregard the modification;

3) Modern Trend: uphold the gift as modified
What is the effect of Uniform Testamentary Additions to Trusts?
Act validates a testamentary gift to any VALID trust sufficiently described in T's will, if terms of trust are written and in existence when T executed his will. The property devised becomes part of the existing trust regardless of who created the trust or if the trust was modifiable or non-modifiable.

What are the three defenses to a will?
1) Fraud

2) Mistake

3) Undue Influence
What is fraud?
Fraud is a representation of a material fact that is known to be false for the purpose of inducing action or inaction which does in fact induce action or inaction
What types of fraud exist under wills?
1) Fraud in the execution
2) Fraud in the inducment
3) Failure to Revoke
4) Fraudulent Prevention of a Will
What is Fraud in the Execution?
T doesn't know that the instrument he signed is a will; entire will is void and estate passes by intestate succession
What is Fraud in the Inducement?
T knows he is signing a will but is misled by another's fraudulent misrepresentations as to will's provisions; only part of will "INFECTED" by fraud is void.
What is a failure to revoke?
T requested revocation, but wrongdoer fails to honor request.
What is fraudulent prevention of a will?
Where T is told a lie to prevent him from writing a will
What is the MAJOR remedy for fraud?
Constructive Trust

-Where UNJUST ENRICHMENT or other injustice (omission of beneficiary) would otherwise result, ct can probate the document and force wrongdoer to serve as constructive trustee for those beneficiaries.
What types of mistakes exist under the will?
1) Mistake in the Execution
2) Mistake in the Inducement
3) Mistake in the Content
4) Mistake in the Description
5) Mistake re: living children
6) Mistake in the validity of a subsequent will or codicil
What is mistake in the execution?
Where T mistakenly signs the wrong document there is NO INTENT TO MAKE A WILL. The will is invalid and parol evidence is inadmissible.
What is mistake in the inducement?
T makes a particular disposition based on mistaken beliefs; WILL IS VALID AND NO RELIEF unless both of the mistake and the disposition of property T would have made BUT FOR the mistake appear on the FACE OF THE INSTRUMENT.
What is mistake in the content?
scribner's error: generally NO RELIEF b/c to do so would subject every will to attack and would destroy the statute of wills.
What is mistake in the description?
If ambiguous language, PAROL EVIDENCE ADMISSIBLE to determine T's intent and to clarify ambiguity.
What can a mistake regarding living children be remedied?
PRE-will children can take under the prior will or intestate share if mistakenly believed to be dead or non-existent.
How can a mistake be remedied regarding the validity of a subsequent will or codicil?
Dependent Relative Revocation may apply if prior will substantially identical & if consistent w/ T's intent.

Who's burden is it?
Buden is on the party asserting
What are the elements of undue influence?
"Indicia of Undue Influence" Query--Was T's will overborne at the time of execution of a will?
The elements are....
T is:

OPPORTUNITY to exercise undue influence
DISPOSITION to exercise undue influence (wrongdoer had something to gain)
UNNATURAL result (e.g. natural object of T's bounty excluded)
Rebuttable Presumption of Undue Influcence arises when?
Yes, rebuttable presumption of undue influence arises when:
1) Confidential or Fiduciary duty or relationship between T and wrongdoer exists whenever one person reposes trust in another
2) Active Participation in will preparation or execution of will by wrongdoer (circumstantial evidence can be used)
3)Undue Benefit of alleged wrongdoer

*Effect: Entirely INVALID or invalid to the extent affected by undue influence.
A. What are the 7 ways that REVOCATION can occur?
1) By Physical Act
2) By Subsequent Instrument
3) By operation of Law
4) By Ademption
5) By Satisfaction
6) By Advancement
7) By Restriction
How does Revocation By Physical Act occur?
1) Destroying, obliterating, canceling, burning, tearing with T's SIMULTANEOUS INTENTION to revoke

2) Intentional defacing of T's signature on will revokes entire will

3) By testator someone acting at his direction in his precense destroying original or executed duplicate of will

*accidental destruction is not enough
Can a partial cancellation of a residuary gift increase the gift in the will or change the beneficiaries?
NO, a partial cancellation cannot increase a non-residuary gift in the will or change the beneficiaries
"To A for life, remainder to B"
A either takes a life estate or nothing (SPLIT) but does not take in fee simple; B's remainder goes to the residue (which can be increased)
"I leave $20000 to John"
John takes $2000 (ok to cancel last numerals if first numerals intact) since this decreases John's gift).
Are intentional additions effective if it qualifies as a holographic codicil or is made in connection with a holographic will?
Formal Will: "I leave $1000 $2000 to John"
original $1000 gift is revoked $2000 gift is ineffective unless it qualifies as a holographic codicil (signed or initiated by T & all material terms are handwritten=here John gets nothing since all material terms are not in T's handwriting and T did not sign.
Holographic Will: "I leave $1000 $2000 to John
Valid since T's prior signature & date in prior holographic will are adopted.
Would DRR apply in the formal will example above?
Yes. DRR would apply, effectively reinstating $1000 gift, if consistent with T's intent & John gets $1000, but contra where gift is DECREASED, since this would be inconsistent w/ T's intent ("I leave John $2000 $500 - NO DRR)
How does Revocation By Subsequent Instrument occur?
Express Revocation

Implied Revocation
What is Express Revocation?
Express Revocation by a subsequent instrument which satisfies the requirements of execution.

*NOTE: Revocation of will revokes all condicils but not vice versa.
What is Implied Revocation?
Implied revocation by an entirely inconsistent instrument. If not inconsistent they are read together with the provisions in the 2nd instrument controlling as to any partial inconsistencies.
How does Revocation by Operation of Law occur?
1) Post Will Marriage

2) Post Will Child
How is revocation by Operation of Law related to post will marriage?
A will executed prior to marriage is REVOKED as to surviving spouse's intestate share UNLESS:

1)T has provided for spouse outside the will
2)Failure to include the spouse was intentional
3)Surviving spouse executed a VALID WAIVER of her right to share in T's estate

NOTE: waiver must be in writing singed by spouse with full disclosure
How does revocation by ademption occur?
Occurs when the T has devised specially described real &/or personal property & the item is not owned by T as his death. The specific gift is deemed revoked & beneficiary takes nothing unless there is evidence that T intended beneficiary to take a substitute gift. There is a constructional preference for viewing such gifts as general gifts (which are not adeemed).
Even where property adeemed...
devisee has right to receive unpaid insurance benefit in property, condemnation award for taking of property, balance of purchase price owed by purchaser where property sold, foreclosure proceeds.
How does revocation by satisfaction occur?
A general or specific legacy is satisfied (& thus revoked) when an intervivos gift is made to the heir and the intention that the gift be in satisfaction of a legacy is expressed in contemporaneous writing by the donor or acknowledged to be a satisfaction by the donee.
How does revocation by advancement occur?
Advance payment intervivos is deducted from heir's shares if intent expressed in a written document executed by donor/donee: If intervivos share/gift exceeds intestate share,heir gets nothing, but need not refund the difference if donee fails to survive the decedent. Advancement is NOT considered in donee's heirs/issue's share unless writing or acknowledgment provides otherwise. Gift valued. Decedent's death or donee's possession: whichever is first.
How does revocation by restriction occur?
A person found to have feloniously and intentionally killed the decedent MAY NOT inherit the decdent's property by will or intestacy. Killing may be established by criminal conviction or by probate court by preponderance of the evidence. Estate passes as if the killer predeceased the decdent but the killer's issue may be substituted under anti-lapse statute.
How does Revival occur?
C/L: Revocation of a subsequent will automatically revives a prior will.

Uniform Probate Code & CA does not follow C/L: Unless it is evident from the circumstances of the revocation of the 2nd will or from T's declarations that he intends 1st will to be effective, RE-EXECUTION or REPUBLICATION is required. REVOCATION OF A LATER WILL DOES NOT BY ITSELF OPERATE TO REVIVE THE PRIOR WILL.
How does Republication occur?
A revoked will that is still in existence (not destroyed) may be validated by republication, that is, by re-executing a will or through use of a validly executed condicil which makes reference to the will (by incorporation by reference)
How does Revocation occur? (DRR)
1) "If T cancels his will incident to an attempted substitution which fails, it will be presumed that the revocation was conditional on the effectiveness of the new disposition & that, in absence of contrary evidence, T would have wanted the old will to be probated. Will 1-invalid W2-Will 1 revived

Can T contract to make a will?
T can contract to make, not to make, to revoke or not revoke a will--testamentary formalities are not required--contract law controls not probate law.
What must K be established by?
1) Provisions in will stating material terms of K;

2) An express reference in the will to the K & extrinsic evidence;

3) A writing signed by T evidencing the K.
What are the requirements and rules for K to make a will?
1) K must be in writing (as above)

2) K is always revocable

3) If underlying K exists courts will enforce when one party dies, making K irrevocable; constructive trust will be imposed;

4) ORAL K enforceable if part performance.
What are joint wills?
Joint will= Wills of 2 or more persons executed on the same piece of paper & intended to be the will of each.
What are mutual wills?
Mutual Wills=Separate wills by 2 or more persons containing provisions for reciprocal benefits.
What is the preference with respect to constructional rules?
For passing property to natural objects of T's bounty.
Can there be use of extrinsic evidence?
Permitted to resolve ambiguities, but T's declaration not admissible.
What are the constructional rules with respect to children?
Children are the first degree of lineal descendants:

1) Adopted children are treated as the natural child of her adoptive parents:

a)Child can inherit from or through
What are the constructional rules with respect to adopted children?
1) Adopted children are treated as the natural child of her adoptive parents:

a)Child can inherit from or through the adoptive paretn & they inherit from her.
b) Natural parents or grandparents or other relatives may not inherit from or through an adopted child unless natural parent and child live together as parent and child OR if adoption was by spouse of either the natural parents or after the death of natural parents.
c)Natural parents or grandparents or other relatives may not inherit from or through and adopted child if the child has been adopted by someone other than the spouse or surviving spouse of that parent.
What are the constructional rules with respect to foster children & step children?
Treated likewise if established that parent would have adopted them except for legal barrier
What are the constructional rules with respect to illegitimate children?
General rule: may inherit from and through their mother but only from and through fater if paternity is established by marriage of parents, adjudication of paternity during father's lifetime or proof of paternity.
What are the constructive rules with respect to lapse?
C/L: Beneficiary must survive T or gift lapses and passes by residual; if none then by intestacy; however, if residual legatee dies, it passes intestate

If devise is to a class, i.e. "to the children of X" devise divided among X's surviving children and dead children's devise does not lapse.
What are the constructive rules with respect to abatement?
Where there is insufficient property to cover all claims, how are gifts reduced?

1) Look to abatement provision in will, if any;
2) If none, take from intestate property;
3) The residuary estate;
4) All other specific gifts proportionately unless ct decides T intended otherwise;
5) Gifts to blood relatives & spouse abate last.
What are the constructive rules with respect to the Uniform simultaneous Death Act?
1) When two people die at same time & time of death cannot be esablished a property of each decedent treated as if he predeceased the other.

a) Joint Tenants-one half of property goes to estate of each joint tenant
b) Insured & Beneficiary dies--proceeds treated as if the insured outlived the beneficiary. Where policy involves husband's and wife's C/P or Q/CP, then 1/2 goes to H & W's estate.
c) Where devise is conditional on one beneficiary suriving another, & it cannot be determined which bene survived the other, the property will be devided equally as if that bene had survived the other beneficiaries.
d) H & W--H's and W's estate receives one-half of C/P & Q CP
e) Under UPC, bene who does not survive T by 120 hours is treated as if he predeceased T.
If there is no will or a will is invalid in whole or in part, apply intesate succession rules
What happens if spouse survives and issue of decedent?
1/3 to Spouse, remainder to issue
What happens if there are no issue but other kindred?
1/2 to spouse; remainder to parents or by descendants of parents (i.e., brothers and sisters and their issue)
If surviving spouse survives and no issue survive, no living parents or descendants?
All to spouse
If spouse does not survive and issue survive
issue take whole estate by per stirpes
If spouse does not survive and no issue survive, but parents survive?
Surviving parents take all of the estate
If spouse does not survive and no issue/parents survive,
All to siblings
If spouse does not survive and no issue, parents, brothers or sisters
All to collaterals (the nearest collateral relations)
If spouse does not survive and none of the others survive
To the state
(General Principles of Intestate Succession)

Per Capita (UPC)
UPC adopted per capita distribution at each generation
Under the UPC, it is Per Capita and not right of representation at each level.
Next of Kin:
Look to the degree of kinship, and if relatives are of the same degree but have different ancestors, those who claim through the ancestor nearest to D takes to the exclusion of others.
VIII Conflict of Laws
(What Law Applies)
For personal/intangible property, the law of the decedent's domicile applies, for real property the law where the land is located applies.
Is an out of state will valid?
Yes, an out of state will is valid and may be probated in the state under the Uniform Execution of Foreign Wills Act if executed under:
1)The law of the jurisdiction
2)The law of the state where executed;
3) Law of place of T's abode/domicile;
4) Law of T's domicile at death.