Wills

Front 1

Testamentary Intent

Back 1

Look for present unequivocal intent...Does testator intend the instrument to dispose of his property upon death.

Front 2

Conditional Will

Back 2

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

Front 3

Infancy (Age)

Back 3

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

Front 4

Mental Capacity

Back 4

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

Front 5

Insane Delusion

Back 5

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

Front 6

Fraud

Back 6

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

Front 7

Fraud - Execution

Back 7

Testator tricked into signing a document not knowing it to be a will (no intent)

Front 8

Fraud - Inducement

Back 8

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

Front 9

Undue Influence

Back 9

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

Front 10

No-Contest Clause

Back 10

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

Front 11

Contest means?

Back 11

Contest means any action identified in a "no contest" as a violation of the clause

Front 12

Direct Contest

Back 12

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

Front 13

Indirect contest

Back 13

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

Front 14

Public Policy = not contest clauses

Back 14

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

Front 15

Mistake in the execution

Back 15

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

Front 16

Mistake in the inducement

Back 16

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

Front 17

Ambiguity

Back 17

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

Front 18

Testator's oral declaration

Back 18

is inadmissible with respect to any uncertainty in the meaning in will or description of gift
exception:
testator's oral declaration always admissible to show testamentary intent

Front 19

Falso demonstratio non nocet

Back 19

A false description does not make the instrument inoperative. The court may strike out the words

Front 20

Extrinsic evidence to show mistake

Back 20

Mistakes as to legal effect of provisions can not be corrected, but they can be treated as ambiguities

Front 21

Formal Will

Back 21

1) Will in writing
2) two witnesses
3) signature
4) attestation by competent witnesses

Front 22

California statutory will Form

Back 22

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

Front 23

Signature

Back 23

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

Front 24

Attestation by competent witnesses

Back 24

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

Front 25

Qualifications of witness

Back 25

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

Front 26

Holographic Will

Back 26

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

Front 27

Probate Code 1613 provides that will made outside of CA is govered by what law?

Back 27

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

Front 28

Distribution of land governed by what law?

Back 28

Descentof land is generally governed by the law of situs state

Front 29

Distrution of personal property, tangible and intangible governed by what law?

Back 29

Govered by the law of the decedent's domicile at his or her death

Front 30

Contract law governs (wills)

Back 30

If the contract meets general standards for contracts it will be valid, writing required CA

Front 31

If a contract is breached prior to first death is there an obligation?

Back 31

No, no obligation exists on the part of the second party to meet requirements

Front 32

Joint/Mutual Wills

Back 32

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

Front 33

Revocability (Joint/Mutual Wills)

Back 33

Revocablity at any time unless made irrevocable by contract

Front 34

Integration

Back 34

Will written on more than one piece of paper

Front 35

Integration - formal will

Back 35

All papers or writings which were actually present at the time of the execution and which testator intended to constitute the will.

Front 36

Integration - Holographic Will

Back 36

Liberal CA, view allows several writings made at different times so long as intended as will

Front 37

Integration - General Rule

Back 37

Pages attached physically or connected by internal sense and continuity of subject matter are part of the will

Front 38

Codicil

Back 38

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

Front 39

Codicil - republication

Back 39

Will is deemed to be republished with the codicil as of the date of the codicil

Front 40

Incorporation by reference

Back 40

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

Front 41

Incorporation in holographs

Back 41

Most states allow holographs to incorporate by reference printed or typed matter. Thus a codicil can incorporate a defectively executed typewritten will

Front 42

Acts of independent significance

Back 42

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

Front 43

Express Revocation

Back 43

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

Front 44

Implied Revocation

Back 44

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

Front 45

Total Inconsistency

Back 45

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

Front 46

Partical Inconsistency

Back 46

(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

Front 47

Physical Act

Back 47

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

Front 48

Presumptions concerning revocation by physical act

Back 48

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

Front 49

Partial revocation

Back 49

A partial revocation by act of destruction can be inferred from the nature of the act performed

Front 50

Revocation - Holographic Will

Back 50

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.

Front 51

Revocation - duplicate

Back 51

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

Front 52

Revocation - Codicil

Back 52

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.

Front 53

Revocation - Will

Back 53

The revocation of a will revokes all of its codicils

Front 54

How much destruction is required?

Back 54

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

Front 55

Increate by physical act not permitted why?

Back 55

A cancellation or destruction cannot be used to increase a gift...add a digit to a monetary gift

Front 56

Lost or destroyed wills

Back 56

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

Front 57

Operation of law - marriage

Back 57

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
Unless
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)

Front 58

Operation of law - Children

Back 58

Means of protecting children's share who have been unintentionally omitted after the making of the decedent's last testamentary instrument
Unless:
1) failure to provide was intentional
2) devised to the parent of the child
3) provided for the child outside of the will

Front 59

Operation of law - Divorce

Back 59

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

Front 60

Dependent Relative Revocation (DRR)

Back 60

(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

Front 61

When does DRR apply?

Back 61

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

Front 62

DRR - Jurisdictional Split

Back 62

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

Front 63

DRR - Caveat

Back 63

1) DRR may apply to one particular disposition as well as entire will

2) doctrine used to effectuate testator's intent

Front 64

Revival

Back 64

A theory allowing a revoked will to be probated because the revoking will was itself revoked

Front 65

Example Revival

Back 65

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

Front 66

Revival of a revoked will

Back 66

A revoked will is not revived unless republished by codicil, incorporated by reference or re-executed with the same formalities of a new will.

Front 67

Republication by Codicil

Back 67

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

Front 68

Order of payment of claims

Back 68

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

Front 69

Devise

Back 69

Any disposition of real/personal property

Front 70

Bequest (legacy)

Back 70

Gifts of personal property

Front 71

Specific Gift

Back 71

Gift of particular identificable item (My 100 shares of ABC stock)

Front 72

Genernal Gift

Back 72

Gift out of general estate (100 shares of ABC stock to A)

Front 73

Demonstrative Gifts

Back 73

Generaly legacy payable first from particular property and then out of the estate if that property is insufficient

Front 74

Residuary Gift

Back 74

A gift of what remains of testator's property after first paying debts, expenses, taxes and secondly, after specific, general, demonstrative gifts

Front 75

Ademption

Back 75

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.

Front 76

Rule of Ademption is based on what?

Back 76

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)

Front 77

Satisfaction by Inter Vivos Gift

Back 77

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

Front 78

Abatement

Back 78

Reduce gift to beneficiaries under the will because the testator's estate is not sufficient to pay all estate obligations, bequest, and devises

Front 79

What is the order of Abatement?

Back 79

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

Front 80

Increase in Property Value - During T-s Lifetime

Back 80

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

Front 81

After T- Death (interests/profits)

Back 81

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

Front 82

Exoneration

Back 82

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

Front 83

Lapse Statute

Back 83

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)

Front 84

Effect of lapsed gift

Back 84

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

Front 85

Void gift

Back 85

If legatee/devisee is dead at time T executes his will, gift is void. Consequences same as lapsed gift

Front 86

Class Gift

Back 86

Use to avoid lapse. A class is a group of two or more persons who share some common characteristics.

Front 87

Anti Lapse Statute

Back 87

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

Front 88

Omitted Heirs

Back 88

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

Front 89

Omitted Spouse

Back 89

Means of protecting spouse when an individual marries after mnaking of the last testamentary instrument and does not mention the spouse

Front 90

Slayer

Back 90

(Facts will indicat beneficiary kills testator)
View that slayer does inherit but a constructive trust is imposed to prevent slayer's unjust enrichment

Front 91

Release

Back 91

1) heir may release interest under the will to the decedent

2) release binding on heir as long as adequate consideratin/reliance by decdent

Front 92

Intestate Succession

Back 92

Any part of estate not effectively disposed of by will

Front 93

Community Property

Back 93

Decedent's share of community property passes to the surviving spouse in the absence of a will (thus surviving spouse receiving 100%)

Front 94

Quasi-Community

Back 94

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

Front 95

Separate Property

Back 95

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

Front 96

The rest of the property - or all if no spouse survive passes: I PIG IN PE

Back 96

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

Front 97

Per Stirpes

Back 97

If the issue are not of the same degree of kinship to decedent they take by right or representation (step into shoes)

Front 98

Per Capita

Back 98

If the issue are all of equal degree of kinship to the decedent (all are of the same generation) they take equally

Front 99

Root Level

Back 99

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)

Front 100

Simultaneous death

Back 100

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

Front 101

Adopted Child

Back 101

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./

Front 102

Judicial Doctrine of Equitable Adoption

Back 102

1) clear and convincing evidence standard

2) not based on a quasi contractual basis

3) based on contract principles

Front 103

Children born out of wedlock

Back 103

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

Front 104

Foster parent or stepparent

Back 104

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

Front 105

Advancements

Back 105

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

Front 106

What is the statute of limitations?

Back 106

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

Front 107

Required Notice

Back 107

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