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107 Cards in this Set

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  • Back
Testamentary Intent
Look for present unequivocal intent...Does testator intend the instrument to dispose of his property upon death.
Conditional Will
A will may be made expressly conditional upon the happening of an event. If the condition does not happen, the Will will be denied probate.
1) Parol evidence is not admissible to show that a will absolute on its face was intended to be conditional

2) a conditional codicil can republish a conditonal will even though the condition of the codicil has not been satisfied
Infancy (Age)
Must be 18 years old to make a will
1) emancipated minor may qualify but not in CA

2) Chronological age not mental capacity (54 mental age of 12 can make will
Mental Capacity
1) Testator must know and understand at the time of the making of the will
a) nature and extent of his bounty
b) the persons who are the natural objects of his bounty
c) the nature of the disposition

2) must be of sound mind but not necessarily sound body

3) Person adjudged insane is presumed to lack testamentary intent
Insane Delusion
Ideas or beliefs which spring spontaneously from a diseased or prevered mind without reason or foundation in fact- testator must act on the basis of the belief or idea

Portion of the will is invalid, the burden of proof is on those claiming an insane delusion...but for the delusion disposition would not have been made
Testator must have been willfully deceived by a beneficiary as to the character or content of the instrument or as to extrinsic facts which would induce the will or a particular disposition
Fraud - Execution
Testator tricked into signing a document not knowing it to be a will (no intent)
Fraud - Inducement
Testator has the intent to make will but fraudulently is induced into making a particular gift (intent present)- gift by fraud must be set aside
Undue Influence
Influence so great as to destroy the free agency of the testator
1) testator susceptible to influence (age, health)
2) Opportunity to exercise influence
3) Disposition to influence for improper purpose
4) Are provisions of will unnatural

Person who exercises influence usually beneficiary
No-Contest Clause
CA enforces no contest clauses but they are strictly construed.
a) a beneficiary with reasonable cause can bring a contest on one or more of the following:
1) forgery
2) revocation
3) Establish invalidity of any transfer
4) Reasonable cause
5) Precludes the enforcement of the no contest clause
6) Extends to instruments excuted before the effective date of the statute
7) statute of limitations for the commencement of any action
Contest means?
Contest means any action identified in a "no contest" as a violation of the clause
Direct Contest
Direct contest - a pleading in any court alleging the invalidity of all or part of an instrument based on one or more of the following grounds:
1) revocation
2) lack of capacity
3) fraud
4) misrepresentation
5) menace
6) duress
7) undue influence
8) mistake
9) lack of due execution
10) forgery
Indirect contest
A pleading in any court that indirectly challeges the validity of all or part of an instrument based on any otehr ground not designated in direct contest and does not contain any of those grounds
Public Policy = not contest clauses
1) pleading regarding an order annulling a marrige of the person who executed the will
2) challenging the exercise of fiduciary power
3) appointment of fiduciary power
4) accounting or report of fiduciary
5) documents expressly ID in the no contest clause
6) ...settlement or compromise whether or not it affects the terms of an instrument
7) ...intention of the person creating the instrument
8) Petition to compel accounting or report of a fiduciary if that accounting or report is not waived by the instrument
Mistake in the execution
A mistake in the execution as a general rule where there has been a mistke in the execution of a will (testaor signed the wrong will) it will fail for lack of testamentary intent
Mistake in the inducement
As a general rule no relief is granted for a mistake in the inducement unless fraud exists except:
1) relief will be granted only where both the mistake and the actual alternative appear on the fact of the instrument
2) court will not rewrite the will but may strike mistake
3) effect - the entire will may be held invalid or the court may sever a provision unless to do so would violate the testator's intent
Particular words/description subject to multiple intrepretations.

Where there is no distinction between patent and latent ambiguities and extrinsic evidence is admissible to determine the meaning of a will or a portion of a will if the meaning is unclear
Testator's oral declaration
is inadmissible with respect to any uncertainty in the meaning in will or description of gift
testator's oral declaration always admissible to show testamentary intent
Falso demonstratio non nocet
A false description does not make the instrument inoperative. The court may strike out the words
Extrinsic evidence to show mistake
Mistakes as to legal effect of provisions can not be corrected, but they can be treated as ambiguities
Formal Will
1) Will in writing
2) two witnesses
3) signature
4) attestation by competent witnesses
California statutory will Form
A testamentary document prepared on the California Statutory will form, signed by the testator and two witnesses meets the general probate code requirements for executing a valid will even though the specific requirements for execution of a statutory will form are not met
Must be on the will, usually at the end to indciate the end of the body of the will (CA does not require a signature at the end)

1)signature by the testator or someone in the testator's presence and by the testator's direction

Provisions located under signature if added later, invalid (lack of due execution) but original provisions above signature are arguably valid (severance). Will provision written under the signature line but before the will is executed are vaid since CA deleted the requirements that the will must be signed at the end of the document
Attestation by competent witnesses
1) the will shall be witnessed by being signef by at least two persons each of whom
a) being present at the same time witnesses either ths signing of the will or the testor's acknowledgment of the signature of the will and
b) understand that the instrument they signed is the testator's will

b) the signing by the testato or the testator's acknowledgment of the signature or of the will must occur in the joint presence of the witnesses, but CA does not require that the witnesses sign in the presence of each other or in the presence of the testator
Qualifications of witness
1) compentacy determinef at the time of the will's execution
2) disinterested; if interested
a) common law, witness deemed incompetent and barred from testifying will fails
b) modern - purging statutes- not invalid creates a rebuttable presumption that the witness procured the devision by duress, menace, fraud, or undue influence
Holographic Will
1) no particular form required only material portions must be in writing

2) must be signed on the will (anywhere will suffice)

3) date need not be accuraate unless it deemed material
Competent evidence exists that establishes the holographic will was executed after the date of the execution of another will, the holographic will controls

4) testamentary intent
5) Imminent death
6) statement of testamentary intent in holograph
7) a symbol (A-B) with no fixed meaning cannot replace words to prove testamentary intent
Probate Code 1613 provides that will made outside of CA is govered by what law?
Probate codes provides that a will out of CA is valid in CA if executed in accordance either with
1) CA law
2) the law of the state executed
3) the law of hte place where at the time execution or at the time of death the testator domiciled
Distribution of land governed by what law?
Descentof land is generally governed by the law of situs state
Distrution of personal property, tangible and intangible governed by what law?
Govered by the law of the decedent's domicile at his or her death
Contract law governs (wills)
If the contract meets general standards for contracts it will be valid, writing required CA
If a contract is breached prior to first death is there an obligation?
No, no obligation exists on the part of the second party to meet requirements
Joint/Mutual Wills
Joint will - Will of two or more persons executed in the same instrument intended to serve as the will for each

Mutual will - separate wills executed by two or more testators that contain substantially similar provision
Revocability (Joint/Mutual Wills)
Revocablity at any time unless made irrevocable by contract
Will written on more than one piece of paper
Integration - formal will
All papers or writings which were actually present at the time of the execution and which testator intended to constitute the will.
Integration - Holographic Will
Liberal CA, view allows several writings made at different times so long as intended as will
Integration - General Rule
Pages attached physically or connected by internal sense and continuity of subject matter are part of the will
A testamentary instrument executed subsequent to the executin of a will oridinarily intended to expand, alter, or modify the will.

Admissible to probate by itself. IF will fails codicil may become will
Codicil - republication
Will is deemed to be republished with the codicil as of the date of the codicil
Incorporation by reference
Document is incorporated into the will by reference so that it is considered part of the will (no physical conenction exists)

1) in existence when the will or codicil is written
a) will must refer to and show intent to incorporate
b) that which is mentioned must be that which is incorporated

2) Identifiable - Document is the fact that the document described

3) may not incorporate by reference a document to be written in the future
Incorporation in holographs
Most states allow holographs to incorporate by reference printed or typed matter. Thus a codicil can incorporate a defectively executed typewritten will
Acts of independent significance
Court may fill in blanks in a will by reference to an act or event which will have significancse apart from its significance to the will
1) to identify beneficaries - it act has independent significance from testatmentary motive,
2) to identify the gift

3) acts of third parties
Express Revocation
A will may be revoked in whole or in part by the express terms of a later will or codicil whether or not the later will or codicil makes any disposition of property
1) must be duly executed
Implied Revocation
A will may be revoked in whole or in part by implication from the term of a subsequent instrument. To the extent that a second will makes an inconsistent disposition of property the terms of the prior will are necessary superseded or nullified
Total Inconsistency
If the second will is totally inconsistent with the first, the first will is revoked instantaneously and can no longer be admitted to probate even if the second will is later revoked unless the testator intends to revive the first will
Partical Inconsistency
(supersede) the latter instrument prevails over the first to the extent of the partial inconsistency. The earlier will is admitted to probate along with the later instrument and the earlier instrument is not revoked but is merely superseded as to the inconsistencies
Physical Act
A will may be revoked by burning, tearing, cancellation being defaced, obliterated, or destroyed with the requisite intent

1) the physical act must be accompanied simultaneously with the requisite intent if the act is done without such intent no revocation occurs
Presumptions concerning revocation by physical act
1) if a will is found mutilated among the testator's belongings after death it will be presumed that the testator did the act

2) if there is no direct evidence of the testator's intent, a presumption exists that the testator destroyed the will with the intent to revoke if the will cannot be found at death, and it was last known to be in the testators possession
Partial revocation
A partial revocation by act of destruction can be inferred from the nature of the act performed
Revocation - Holographic Will
In a holographic will the crossing out of and writing of a new provision constitutes both a revocation of the altered provision and a valid new deposition. The prior signature and date if any (date not required) are adopted when the alteration is made.
Revocation - duplicate
Where a will has been executed in duplicate, an act of revocation on one of the exectued duplicates revokes the will, and the untouched copy. Buy the destruction of an executed copy does not have the effect of revoking the executed will or copy
Revocation - Codicil
An act of revocation performed on a codicil does not also serve to revoke the will, even if intended. Act must be performed on the will itself to revoke it.
Revocation - Will
The revocation of a will revokes all of its codicils
How much destruction is required?
1) burning or singeing of any material portion of the will itself not just the margin will constitute revocation
2) tearing - material part
3) Obliteraton- defacing, erasing, inking out must occur to a material part. Defacing signature revokes the entire will
3) Cancellation - drawing lines through a material portion of a will or through provisions of a will. An X or void written across the face of the will is a cancellations
Increate by physical act not permitted why?
A cancellation or destruction cannot be used to increase a gift...add a digit to a monetary gift
Lost or destroyed wills
A lost/destroyed will can be admitted to probate if it is established that the testator had no intent to revoke and its contents can be proved by a preponderance of the evidence and by a single witness
Operation of law - marriage
If a person marries after the decedents execution of their last testamentary instrument, and the spouse survives the maker but the spouse is not provided for, the surviving spouse may take, community property, quasi community property
1) testator failure to expressly provide for spouse was intentional

2) provide for spouse outside of the will

3) spouse made a valid agreement waiving the right to share in the testator's estate (in writing)
Operation of law - Children
Means of protecting children's share who have been unintentionally omitted after the making of the decedent's last testamentary instrument
1) failure to provide was intentional
2) devised to the parent of the child
3) provided for the child outside of the will
Operation of law - Divorce
Dissolution/annulment of the testator's marriage after exectuion of a will if it occurs after 85 automatically revokes all disposition and powers in the will to the ex spouse, unless the will provides otherwise

Remarriage to a former spouse revives any disposition revoked solely by this rule
Dependent Relative Revocation (DRR)
(control issue) The doctrine applies when a testator revokes his will/gift upon a mistake belief that another disposition of his property would be effective; and but for the mistake would not have revoked his will/gift

1) must have mistake belief of law or of fact which induces revocation

2) When revocation occurs by reason of mistke of law or fact revocation is held to be invalid and that which as though to be revoked is reinstated

3) The doctrine applies only if there is an ineffective alternative disposition. It does not apply where T revokes his will by mistake and makes an effective new disposition

** DRR applies in attempt to increase a gift but not to decrease a gift
When does DRR apply?
1) to a revocatin by subsequent instrument to effectuate testator's intent

2) Serves as a means of granting relief for a mistake in inducement in the revocation of a will

3) Used to correct a mistake in the drafting of an estate plan
DRR - Jurisdictional Split
1) Common Law - permits DRR only where revocation is by physical act

2) Modern law - Permits DRR if there is an express revocation clause which revokes all prior wills

3) CA permits a very broad application of DRR
DRR - Caveat
1) DRR may apply to one particular disposition as well as entire will

2) doctrine used to effectuate testator's intent
A theory allowing a revoked will to be probated because the revoking will was itself revoked
Example Revival
Testator executes Will #1, Testator subsequently executes WIll #2, Will #1 is either expressly or impliedly revoked. Then the testator revokes WIll #2. Is Will #1 revived?

1) CA - looks to intent
Revival of a revoked will
A revoked will is not revived unless republished by codicil, incorporated by reference or re-executed with the same formalities of a new will.
Republication by Codicil
A revoked will which is still in physical existence and which has been validly executed originally may be revived through publication of a subsequent codicil. But if the will has been revoked by physical destruction it cannot be republished because one cannot declare an instrument not in existence to be his will
Order of payment of claims
1) payment of debts
2) funeral expenses
3) taxes
4) expenses of adminstration
5) family advances must be provided for before the estate can be distributed to the interested beneficaries
Any disposition of real/personal property
Bequest (legacy)
Gifts of personal property
Specific Gift
Gift of particular identificable item (My 100 shares of ABC stock)
Genernal Gift
Gift out of general estate (100 shares of ABC stock to A)
Demonstrative Gifts
Generaly legacy payable first from particular property and then out of the estate if that property is insufficient
Residuary Gift
A gift of what remains of testator's property after first paying debts, expenses, taxes and secondly, after specific, general, demonstrative gifts
A specific legacy(gift of personal property) or device is adeemed when the specific property is given is not part of the testator's estate at the time of death.
Rule of Ademption is based on what?
an assumption that T intended ademption when the item is not in his estate at death two ways to argue gift
1) classify the gift as general or demonstrative

2) Classify inter vivos dispositon as change in form not subtance. (auto destroyed = changes to insurance proceeds = ok)
Satisfaction by Inter Vivos Gift
Specific, general or demonstrative gifts may be satisfied in whole or in part by an inter vivos transfer from the testator to the beneficiary subsequent to the execution of the will, if the testator intends the transfer to have that effect

1) CA requires writing signed by transferor/transferee
Reduce gift to beneficiaries under the will because the testator's estate is not sufficient to pay all estate obligations, bequest, and devises
What is the order of Abatement?
Unless testator has made provisions to the contrary, order of abatement is
1) Intestate property
2) Residuary gifts
3) general bequests
4) demonstrative bequests
5) specific bequests
Increase in Property Value - During T-s Lifetime
1) stock slip - after execution but before dealth
a) older view - general no gain specific
b) modern view - 2 to 1 theory that T intended to give general economic benefit equal to proportionate interest

2) Stock dividend - the beneficiary will receive the additional stock dividends
After T- Death (interests/profits)
1) specific gifts -carries with it right to earnings of profits produced by particular property

2) general gift - earned interst at legal rate beginning one year after death of T

3) residuary gift - no interest permitted
T devises land subject to a mortgage, lien or encumbrance on which T is personally liable. A specific gift passes the property subject to any mortgage, a deed of trust or other lien without right of exoneration. This is true, despite a will provision to pay testator's debts
Lapse Statute
When a devisee/legatee dies after a testator executes his will but before T dies, the gift to him lapses (fails) in the absence of testamentary or statutory provisions to the contrary ( a dead person can not take any property interest)
Effect of lapsed gift
1) look for alternative gift

2) If no alternative then specific, general devises and bequests which lapse fall into residuary estate

3) If laspse gift is residuary gift, property passes intestate. There can be no residue of a residue
Void gift
If legatee/devisee is dead at time T executes his will, gift is void. Consequences same as lapsed gift
Class Gift
Use to avoid lapse. A class is a group of two or more persons who share some common characteristics.
Anti Lapse Statute
Inherence by descedants of predeceased devisee/legatee

1) statute applies only to a gift to any kindred-devisee of Testator. Devisee means kindred of the testator or kindred of a surviving deceased or former spouse of the testator, note a spouse is not kindred

2) applies only where devisee/legatee leaves lineal descendants. Lineal includes adopted children by devisee/legatee

3) when applied substitute lineal descendants for devisee/legatee

4) applies to void, lapse, and class gifts

5) one cannot claim as omitted heir and under the antilapse statute
Omitted Heirs
Means of protecting children who have been unintentionally omitted born after the making of the last testamentary instrument
1) effect is children take intestate share

2) Adopted children and children born out of wedlock can qualify as ommitted heir
Omitted Spouse
Means of protecting spouse when an individual marries after mnaking of the last testamentary instrument and does not mention the spouse
(Facts will indicat beneficiary kills testator)
View that slayer does inherit but a constructive trust is imposed to prevent slayer's unjust enrichment
1) heir may release interest under the will to the decedent

2) release binding on heir as long as adequate consideratin/reliance by decdent
Intestate Succession
Any part of estate not effectively disposed of by will
Community Property
Decedent's share of community property passes to the surviving spouse in the absence of a will (thus surviving spouse receiving 100%)
Property is any property (other than land outside the state) owned by either spouse that was acquired while they were domiciled in another state, and which would have been characteristic as community property had it been acquired while the couple was domiciled in CA
Separate Property
If decedent's spouse or domestic partner survives:

1) one third: to spouse if decedent is survived by more than one child or one child and issue of deceased child or issue of two or more deceased children. Remaining two thirds divided equally by representation

2) One-half - to spouse if decedent is survived by only child or the issue of a deceased child or no issue, but a parent or a descendant of a parent

3) All: To spouse if decedent leaves no other lineal heirs
The rest of the property - or all if no spouse survive passes: I PIG IN PE
1) Issue (children)
2) Parents (mon & Dad)
3) Issue of Parents (brother & sisters
4) Grandparents
5) Issue of pre-deceased spouse (step childrent)
6) Next of kid (cousin)
7) Parents or pre-deceased spouse
8) Escheat
Per Stirpes
If the issue are not of the same degree of kinship to decedent they take by right or representation (step into shoes)
Per Capita
If the issue are all of equal degree of kinship to the decedent (all are of the same generation) they take equally
Root Level
Pre 1985- closest living or dead generation to deceased (pure per stirpes)

Post 1985 - closet living generation to decrease (per capita with right of representation)
Simultaneous death
Where order of death cannot be established by clear and convincing evidence the property of each person shall be dispose of as if the had survived unless the decedend provides otherwise by will decedent presumed to have survived beneficiary
Adopted Child
For purpose of succession an adopted child is deemed a descendant of the person who adopted her, the same as a natural child. She inherits from the adoptive parents and from their relatives, they inherit from nor./
Judicial Doctrine of Equitable Adoption
1) clear and convincing evidence standard

2) not based on a quasi contractual basis

3) based on contract principles
Children born out of wedlock
In all states illegitimates are recognized as heir of their mother. Some state do not recognize illegitmate children as heir of their father unless acknowledged by him and contribution to the support or care of the child
Foster parent or stepparent
The relationship between a person and her foster parent, and between a person and her stepparents has the same effect as if it was an adoptive relationship if the relationship began during the person's minority and convincing evidence that the foster parent or stepparent would have adopted the person but for a legal barrier
An irrevocable intervivos gift by a person t his heir with the intention that such gift shall represent a part of the whole of the portion of the donor's estate that the donee would be entitled to the donor's intestate death
What is the statute of limitations?
Provides for an outside time limit of one year for filing any type of claim against decedent. This uniform one year statute of limitations applies to action on all claims against the decedent which survive the decedent's death
Required Notice
Reasonable ascertainable is to be given a broad meaning sufficient to include individuals

1) whose identities are known to petitioner

2) who reasonably might be heir