Wills

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LACK OF CAPACITY

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RULE: At the time of execution, T must satisfy four elements:
(1) must be at least 18yrs old;
(2) must be able to understand the extent of her property;
(3) must know the nature of her bounty [i.e. spouse, issue, parents, and those whose interests are affected by the will]; AND
(4) T must know the nature of her act [i.e. T must know that she is executing a will – no need to know legal technicalities]

Consequences of NO Capacity:
1. Rule: Entire Will is invalid and property, therefore, will pass by intestate succession
2. Exception: If T had a valid prior will that was purportedly revoked by a second will, then the first instrument will be probated b/c if T did not have capacity, the second will could in no way have revoked the first.
3. Exam Tip: Look for T who has a conservator appointed or who is diagnosed w/ a mental disorder. Note that alone, neither is sufficient to show incapacity. Must still go through four prong test.

Front 2

INSANE DELUSION

Back 2

RULE: A will can also be attacked if it can be established that at the time of execution, T was suffering from an insane delusion (4 elements):
1. T had a false belief;
2. That belief was the product of a sick mind;
3. There is no evidence, not even a scintilla of evidence;
4. Delusion must have affected T’s will.

Consequences of Finding an Insane Delusion:
1. Rule: only that part of the will affected by the delusion is invalid.
2. Consequence: As to that part, it will go to the residuary devisee, or if none, or if the residue itself was infected by the delusion, by intestate succession.

Difference b/w Lack of Capacity and Insane Delusion:
1. Lack Capacity: severe problem b/c it goes to T’s entire essence (not know his wife)
2. Insane Delusion: while T has a problem, it is a narrow one and T is otherwise perfectly normal (believing one’s spouse is unfaithful).

Front 3

FRAUD

Back 3

RULE: Fraud involves: (1) a representation; (2) of material fact; (3) known to be false by the wrongdoer; (4) for the purpose of inducing action or inaction; AND (5) in fact induces the action or inaction desired.
TYPES: Fraud in the: (1) execution; (2) inducement; and (3) preventing T from revoking the will.
Fraud in the Execution:
1. Defined: as (a) someone forges T’s signature; or (b) T is given a doc to sign that purportedly is non-testamentary in nature (e.g. pwr of atty) but in fact it is, and T signs it.
2. Consequence: ENTIRE will is invalid and property passes by intestate succession, unless, there is a prior will that was validly executed.
Fraud in the Inducement:
1. Defined: the wrongdoer’s representation affected T’s will.
2. Consequence: Only that part of the will affected is invalid. As to that part, the court has three options: (i) give property to the residuary devisee; (ii) if there is no residue, to heirs at law by intestate succession; or (iii) constructive trust remedy.
3. Note: Fraud in the execution  T does not intend document to be his will. Fraud in the inducement  T intends document to be his will, but, contents are affected by misrepresentation.
Fraud in the Preventing T from Revoking the Will:
1. Defined: this is simply a variation on fraud in the inducement
2. Consequence: court will not probate the will and the property will go to the heirs. Simultaneously, court will decree that the heir is a constructive trustee who must transfer the property to the intended beneficiary as determined by the court

Front 4

UNDUE INFLUENCE

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DEFINED: T’s Free will is subjugated (difference from fraud is that here person is being honest)
WAYS TO Establish: (i) Prima Facie Case; (ii) Presumption; or (iii) Statutory
Prima Facie Case: 4 elements
1. Susceptibility: T has a weakness such that he is able to have his free will subjugated (can be anything subjective, financial, physical, or any weakness of T)
2. Opportunity: Wrongdoer had access to the testator (if wrongdoer is T’s friend, business associate, etc., there is always access  part of the rule, but on exam never in dispute)
3. Active Participation (a.k.a. “disposition” of wrongdoer to exert influence): the wrongful act that gets the gift (can be a use of force, threat of force, blackmail, dragging 90 yr old to atty, etc.)
4. An Unnatural Result: wrongdoer is taking a devise, and this person ordinarily would not be expected to take a devise (typically, it is one who has no relationship to the testator)
Presumption: 3 elements:
a. Confidential Relationship: exists b/w T and the wrongdoer (CA recognizes all of the CL conf. relationships: atty/client; doc/pat; guardian/ward; clergy/penitent; trustee/Ben)(CA also recognizes whenever 1 person reposes trust in another, e.g., conf. relationship can arise b/w two close friends)
b. Active Participation; same as for prima facie
c. Unnatural Result: same as for prima facie case
Consequences of Finding Undue Influence by Prima Facie Case OR Presumption:
Only that part of the will affected by the undue influence is invalid and it goes to: (i) residuary devisees, if any, or, if none; (ii) the heirs at law by intestate succession; or (iii) via constructive trust. Court will choose remedy that gets the best result

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STATUTORY UNDUE INFLUENCE

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RULE: CA law generally invalidates a donative transfer (a transfer by will or trust) from a transferor (testator or settlor) to:
1. a person who drafted the instrument (will or trust); or
2. a person who is related to, married to, in a domestic partnership with, or is an employee of the drafter; or
3. a person who is in a fiduciary relationship with the transferor and who transcribes the instrument or causes it to be transcribed; or
4. a “care custodian” of a “dependent adult” who is the transferor (care custodian may be a professional, e.g., nurse, or a non-professional, e.g. friend taking care of the transferor) (dependent adult is someone (i) older than 64; or (ii) at least 18 who has a physical or mental disability;
EXCEPTIONS: The rules do not apply if
1. transferor is related to, married to, in a domestic partnership with, or cohabitates with drafter; or
2. instrument is reviewed by independent attorney who counsels transferor; or
3. court determines, upon clear & convincing evidence, that the transfer wasn’t the product of wrongdoing. Note: this clear & convincing evidence Exception does NOT apply to situation where the transferee is the person who drafted the will but that it does apply to a transferee who is the spouse, domestic partner, or employee of the drafter, or a care custodian.
CONSEQUENCES of Finding Statutory Undue Influence: The transferee does not take the gift, but only to the extent that the gift exceeds that person’s intestate share. As to the portion that doesn’t pass to the wrongdoer, it passes to the residuary devisee if any, or by intestate succession, or via a constructive trust remedy, whichever gets the best result

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MISTAKE IN CONTENT
&
MISTAKE IN EXECUTION

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Mistake in Content:
1. Defined: Wrong beneficiary is named or wrong gift is made
2. RULE: Whether relief is given depends on the type of mistake
a) Mistake in omission: words are accidentally left out
(i) No remedy given because courts will not rewrite wills
(ii) But look for possible relief under DRR
b) Mistake in addition: words are accidentally added
(i) Remedy may be given  Court make strike out excess language
(ii) Court is not rewriting the will, just excising a part of it
Mistake in Execution:
1. Defined: T signs the wrong document
2. Situations: This occurs in two possible situations:
a) T mistakenly signs a will believing it is non-testamentary
i) Example: T signs a will thinking it is a power of attorney
ii) Will is not probated because T did not intend the document to be a will
b) Reciprocal wills or mutual wills: 2 testators, each w/ own will leaves everything to other
i) Example: H’s will leaves everything to W, and vice versa. H mistakenly signs W’s will and W mistakenly signs H’s will. H dies and W seeks to have H’s will probated.
ii) Consequence: The court may reform the will in this unique situation of reciprocal wills, especially if testators are husband and wife or domestic partners. Thus, where H’s name appears, court will substitute W’s name, and vice versa.

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MISTAKE IN INDUCEMENT
&
MISTAKE IN DESCRIPTION (AMBIGUITY)

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Mistake in inducement:
1. Defined: A particular gift is made or not made on the basis of T’s erroneous beliefs
2. Rule: NO relief is given (Rationale: In order to maintain the integrity of the Statute of Wills)
Example: T would like to leave J $1000 but does not do so because T erroneously thinks J is dead; even though J in fact is alive, J takes nothing
3. Narrow exception: if the mistake and what T would have done but for the mistake both appear on the face of the will, court will grant relief. Example: Will reads, “I leave J nothing because J is dead, but were J not dead, I would leave J $1k”
Mistake in description (ambiguity):
1. Defined: No one or nothing fits description OR two or more persons or things fit description
2. Examples: (a) two persons fit the description; “to my cousin John” (T has two cousins named John); (b) Two things fit the description; “my beach house to X” (T has two beach houses); (c) Nothing fits the description; “to the US Cancer Institute” (Doesn’t exist)
3. Consequences of a Mistake in Description; Distinguish b/w latent and patent ambiguities:
a) Latent ambiguity: no apparent problem on the face of the will. First you introduce Parol evidence to establish the ambiguity and then you introduce the evidence a second time to determine T’s intent
b) Patent ambiguity: the ambiguity is apparent on the face of the will. Some older cases state that no remedy is given in the case of a patent ambiguity.
c) In CA, by modern statute we introduce parol evidence for any type of ambiguity, latent or patent, to determine T’s intent

Front 8

MISTAKE IN THE VALIDITY OF A SUBSEQUENT TESTAMENTARY INSTRUMENT
(DEPENDENT RELATIVE REVOCATION)
&
MISTAKE REGARDING LIVING CHILDREN
(PRETERMISSION)

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DRR: to allow court to disregard a revocation (by phys act or subsequent will) caused by mistake
1. Rule for DRR: (a) If T revokes T’s will, or a portion thereof; (b) In the mistaken belief that a substantially identical will or codicil effectuates T’s intent; (c) Then by operation of law; (d) revocation of the 1st will be deemed conditional, dependent, and relative to the 2nd effectuating T’s intent; (e) If the 2nd doesn’t effectuate T’s intent, the 1st (by pure legal fiction) was never revoked
2. Two situations of DRR for the bar: (I) Will #1 is revoked by physical act; (a) two substantially identical wills, #1 and #2, #2 is invalid as a will, and #1 is revoked by physical act; (b) Look to DRR to probate Will #1.; (II) Will #1 is revoked by subsequent instrument: (a) Testator executes #1 and subsequently #2 (or a codicil), which is valid and substantially the same as #1 and revokes #1, but #2 (or the codicil), although valid, cant effectuate testator’s intent (b/c, e.g., the interested witness rule, or b/c there was a mistake in omission of in #2); (b) look to DRR to probate #1.
PRETERMISSION: an accidental omission
1. RULE: A child is pretermitted if born or adopted after all testamentary instruments are executed and not provided for in any testamentary instrument (includes will/codicil/revocable intervivos trust established by T during his lifetime). Result: Pretermitted child takes an intestate share of the estate (includes assets in T’s inter vivos trust)
2. Corollary: A child born or adopted before all testamentary instruments are executed and not provided for in any instrument is not pretermitted and such child takes nothing. Exception: a child born or adopted b/f all testamentary instruments are executed and not provided for in any of the instruments is treated as if pretermitted if the only reason child wasnt provided for is b/c T erroneously thought child dead/nonexistent (i.e. T made mistake or doesnt know he fathered child)

Front 9

INTEGRATION

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1. Defined: Refers to which papers make up the will
a. No issue of integration when will is written on only one piece of paper
b. But would arise for example if a 10 page will (which pages make up the will?)

2. TWO Elements: required for papers to be integrated
a. Intent: T must have intended for papers in question to be part of the will
b. Presence: Paper must have been actually or physically present at time of execution

Example: Upon reading his 10-page will, T tells lawyer that page 5 does not manifest his intent Lawyer tells T to execute the will as it is, and promises to later type and insert a new page 5 manifesting T’s intent. When T dies, only pages 1-4 and 6-10 can be probated Old page 5 not probated because T did not intend old page 5 to be part of his will. New page 5 not probated because it was not physically present when T executed his will

3. Two ways to Prove Integration:
a) Establish a physical connection among all the pages (e.g. if papers are stapled together, it is inferred that T intended papers to be part of the will and were physically present at the time of execution);
b) Establish a logical connection; (Does the last word on page 1 make sense in relation to the first word on page 2? If so, integration inferred)

Front 10

INCORPORATION BY REFERENCE

Back 10

Incorporation by reference:

Theory: Non-integrated writing is given testamentary effect and becomes part of the will

RULE: 4 Elements
a) Document or writing;
b) Document or writing must have been in existence when the will was executed;
c) Document must be clearly identified in the will; and
d) T must have intended to incorporate the document into the will
e) If you establish elements “a” – “c”, typically “d” will be implied by the court

NOTE: Document does not have to be valid for what it purports it to stand for. Example: you can incorporate by reference an invalid deed, an invalid contract, or even an invalid will of T or of a third person)

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FACTS OF INDEPENDENT SIGNIFICANCE

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Definition: Who a beneficiary is, or what gift is given, may be given meaning by facts of significance independent from T’s will. Facts of independent significance allow us to fill in the blanks to T’s will with parol evidence that is trustworthy because even without the will, this fact would have existed.
a. Applies when, even w/out the will, the fact would have existed.
b. Fact or act can be a future fact or act or a past fact or act (e.g. “I leave all my property to people I had Thanksgiving dinner with in 1999”)
2. Example: T’s will states “I leave all my property to the church I am a member of at the time of my death”
a. The Problem: Cannot determine the identity of the church from the 4 corners of the will. Can’t admit parol evidence whenever we want to b/c we are concerned about maintaining the statute of wills
b. However: here, Church that T is a member of at the time of his death is a fact of significance independent of T’s will, susceptible to independent verification and without concern of fraud.  People join churches for religious reasons, social reasons, psychological reasons, etc. but do not join a church just to validate a devise in a will (i.e. they join a church for reasons independent of the will)
c. Thus: this fact of significance can be ascertained (from records or testimony) and admitted into evidence in the probate of T’s will
3. Example: Where neither incorporation nor independent significance will work (e.g., T’s will states “I leave all my property to the people I will name on a note tomorrow”)
a. Incorporation by reference won’t work b/c the note wasn’t in existence at the time will was executed
b. Independent significance will not work because without the will, this note would not exist (note is not a fact of independent significance)

Front 12

WRITING DISPOSING OF LIMITED TANGIBLE PERSONAL PROPERTY

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Defined: For decedents dying on or after 1/1/2007, under new CA Probate code §6132, a writing, whether or not it can be incorporated by reference or is a fact of independent significance, may be admitted into probate and, thus, given testamentary effect. ***On exam apply all three ***
Rule: 4 elements
1. Writing must be (i) referred to in the will; (ii) dated; and (iii) either signed or handwritten by T. Exception: even if (ii) and (iii), the writing can still be admitted into probate and given testamentary effect if extrinsic evidence establishes T’s intent regarding disposition of the items described in the referenced.
2. Writing must describe the items and recipients (beneficiaries) w/ reasonable certainty.
3. Writing may be executed before or after the will
4. Writing disposes of tangible personal property (excluding cash and property used primarily in a trade or business) valued, at the time of T’s death, at not more than $5k and not more than $25k (note: can aggregate only those items that are not more than $5k).
Consequence if Does Not Apply:
1. If value of item of tangible property is more than $5k it is not subject to §6132 and passes by residuary clause of the will, and if none, by intestate succession.
2. If any person designated to receive property in the wiritng dies b/f T, the property passes as directed in the writing and, in the absence of directions, the disposition lapses (see lapsed gifts).
3. Note: T may make subsequent handwritten or signed changes to any writing (no witnesses are required for this). If there is an inconsistent disposition of tangible personal property as b/w the writings, the last writing controls.

Front 13

POUR-OVER WILLS

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Defined: Part or all of T’s estate is devised to the trustee of an inter vivos trust , to be administered pursuant to the terms of that trust.
Example: T executes a doc creating ABC Trust on Jan 1. On Jan 2 executes his will, which states, “To the trustee of the ABC Trust, to be administered pursuant to the terms of that trust.”

Validating: To get the trust instrument admitted into probate, there are three ways:
1. Incorporation by Reference: (a) we have a trust writing; (b) in existence when the will was executed; (c) its clearly identified in the will; (d) T intended to incorporate the Trust instrument into the will. Thus, the trust instrument will be admitted into probate and the pour-over provision will be validated.

2. Independent Significance: Even w/out the will, we would still have this inter vivos trust and the trust instrument, therefore, is a fact of significance independent from the will. Thus, the pour-over provision can be validated on this theory also.

3. Uniform Testamentary Additions to Trusts Act [UTATA]:
a. So long as you have a valid trust, which was in existence before the will was executed, or at the time of execution, the pour-over provision is valid by statute.
b. The pour-over provision is valid simply because the statute says it is valid.
* Note: it is highly unlikely that §6132 would ever be used to validate (b/c it would require a highly unusual fact pattern b/c of the $ requirement) but if arises on exam, discuss §6132

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ELEMENTS OF AN ATTESTED WILL

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Elements of an Attested Will: (four elements)
1. Will must be in writing (CA does not recognize oral wills)
2. Will must be signed by one of the following three people: (i) Testator [nicknames are ok and “X” is ok if T is illiterate]; (ii) Third person, in T’s presence and at T’s direction [arises when T is incapacitated]; or (iii) by a conservator pursuant to a court order
3. The signing by T, the third person, or the conservator must be done in the presence of two witness both present at the same time [if T had previously signed alone or in presence of just one witness, T may simply either acknowledge his signature (“this is my signature”) or acknowledge the will (“this is my will”) in the presence of the two witness, both present at the same time]
4. The witnesses must understand that the instrument they sign is T’s will.
NOTE: in California
1. Ws do not have to sign at the in the presence of each other nor in the presence of T
2. T does not have to declare to Ws “this is my will” b/c in CA there is no publication req
3. T and/or W can sign anywhere on the will
4. W cannot sign after T dies
5. Normally, T signs and then Ws sign, but if Ws sign before T, CA statute is ambiguous as to whether T must sign b/f either W. On exam, if issue arises, write “If there is no issue of fraud or mistake, the will should be deemed valid under CA’s ‘substantial compliance’ doctrine (that is, if there is no fraud or mistake, the will is validly executed if there is substantial compliance with the Probate Code, even if not literal compliance).”
6. T must sign or acknowledge in presence of 2 Ws. Presence means: (a) Sight presence – Ws see T sign; or (b) Conscious Presence – T signs or acknowledges w/in the Ws’ hearing and the Ws know what’s being done

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INTERESTED WITNESSES
&
CONDITIONAL WILLS

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INTERESTED WITNESS:
A. Defined: A witness is a beneficiary under the will
B. Consequence of Finding an Interested Witness:
1. RULE: 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.
a. If witness-beneficiary rebuts the presumption of wrongdoing, no problem, they can take the gift
b. If witness-beneficiary cannot rebut the presumption of wrongdoing, then he takes the amount as does not exceed what would be given by intestacy
2. Exception: Presumption is inapplicable if witness beneficiary is taking only in a fiduciary capacity (e.g. as a trustee)

CONDITIONAL WILLS: (probated only if the condition is satisfied)
A. Defined: a conditional will is one whose validity is made conditional by its own terms. Ex: T’s will states, “this is my will if I die on my vacation in Europe.”
B. Note: Can be formal (attested) wills or holographic wills.

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ELEMENTS FOR A VALID HOLOGRAPH

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Elements:
1. Must be signed by T (signature can be anywhere  same rules for signatures as attested wills)
2. Material provisions must be in T’s own handwriting (Material provisions are: (i) the gifts made; and (ii) the beneficiaries names)
Testamentary Intent: (e.g. “this is my last will”) A statement of test. intent does not be on the face of the will and in T’s handwriting. There are, however, 3 problems related to a statement of test. Intent: (i) T signs and executes a writing listing only names and next to each an asset that T owns  Extrinsic evidence is admissible to determine T’s testamentary intent; (ii) T writes a series of letters  extrinsic evidence admissible to determine T’s test. Intent; (iii) Testamentary intent are part of a commercially printed form  CA probate Code expressly says ok
Dates:
1. Rule: a date is not required on a holographic will in California
2. Problem of Lack of Dates and Inconsistent Wills: If an undated holograph is inconsistent /w provisions of another will (either a dated holographic will, a dated witnessed will, or an undated witnessed will), the undated holograph is invalid to the extent of the inconsistency – unless the undated holograph’s time of execution is established to be after the date of execution nof the other will. (If two undated holographs, and you can establish which one came lasst, neither holograph is probated to the extent of the inconsistency).
3. Problem of Lack of Dates and Capacity: If a holograph is undated, and if it is established that the T lacked testamentary capacity at any time during which the will might have been executed, the holograph is invalid – unless, its established that it was executed at a time when T had capacity

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CHOICE OF LAW

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RULE: The will is admitted into probate in California if the will complies with the formalities of execution of any of the following:

1. California law;

2. The law of the place where the will was executed;

3. The law of the place of T’s domicile at the time of execution

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CODICILS

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DEFINED: A testamentary instrument executed in conformance with the CA probate code, which modifies, amends or revokes a will
REPUBLICATION: A codicil republishes a will. This means that a codicil causes the will to speak from the date that the codicil is executed on (a.k.a. “down-dating”).
Exam Tip: 2 scenarios (i) pour-over wills & incorporation by reference; (ii) pretermission
1. Pour-Over Wills and Incorporation by Reference: Example: On Jan 1, T executes a inter-vivos trust; then on Jan 2, T executes a will w/ a pour-over provision; and then on Jan 3, the trust is amended. On these facts, incorporation by reference will not work b/c trust as modified was not in existence when the will was executed. New fact: on Jan 4, T executes a codicil that republishes the will. B/c the codicil republishes the will, the codicil causes the will to speak from Jan 4th. Thus, incorporation by reference will now work b/c the trust as modified was in existence on the date that the will is deemed executed, which is now Jan 4.
2. Pretermission Problems: Example: Yr 1 will is executed, Yr 2 child is born or T marries or enters into a domestic p’ship (child, spouse, or domestic p’ner is pretermited), Yr 3 a codicil is executed that republishes will. On exam discuss both theories to preclude an omitted child, spouse, or domestic partner from taking under the pretermission laws: (i) the codicil republished the will, and in the alternative, (ii) the codicil itself is a testamentary instrument, thus the birth, marriage, or domestic p’ship took place before the codicil (test. Inst.) was executed, consequently precluding any pretermission attack by child/ spouse/ domestic p’ner
REVOCATION of CODICILS:
Rules: If T executes a will then executes a codicil, and subsequently:
(i) revokes his codicil, there is a rebutable presumption that T intended to revoke only his codicil; but if instead T
(ii) revokes the will, there is a rebutable presumption that T intended to revoke both will & codicil

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REVOCATION BY PHYSICAL ACT

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RULE: 3 Elements
1. Will must be burned, torn, cancelled, destroyed, or obliterated (e.g. erasing).
2. T must have the simultaneous intent to revoke (i.e., act + intent must coincide)
3. The act must be done by either T, or by some one in T’s presence and at his direction (presence means same as requirement for formal execution)
DEFINITIONS of Cancellation & Interlineations:
1. Cancellation = crossing out or lining through
2. Interlineation = writing b/w the lines
CANCELLATION to Increase a Gift:
1. Rule: You cannot increase a co-beneficiary’s gift by cancellation
2. Example: “I leave my farm to X and Y”; If T later cancels out Y’s name, X will still nonetheless only take ½ of the farm, and the other ½ will go to the residuary devisees, and if none, by intestacy
INTERLINEATIONS to Typed Wills that Do Not Qualify as Holographs:
1. Note: An interlineation or other handwritten addition to a typed (attested) will that does not qualify as a holographic codicil may nonetheless be a valid cancellation
2. Example: T executes a valid typed formal will and subsequently writes “null and void”. W/out a signature, it can’t be deemed a holographic codicil to the typed formal will. However, even w/out the signature, it is a valid cancellation of the typed formal will.

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DUPLICATE WILLS
&
MUTILATED WILLS

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Duplicate Wills = Duplicate Originals or two sets of originals  Does not mean photocopies

RULE: If T, or someone in T’ presence and at his direction, revokes by physical act one of the duplicate originals then the other duplicate original also is revoked, as a matter of law.

Note: the term “presence” here is defined in the same manner as it is for the purposes of the requirements of formally executing a will.


Mutilated Wills:

RULE: 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 w/ the intent to revoke the will.

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REVOCATION BY
SUBSEQUENT WRITTEN
INSTRUMENT

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MANNER OF REVOKING: Two ways
1. Express Revocation: W1 can be revoked by W2 if W2 expressly revokes W1
2. Implied Revocation: W2 revokes W1 by implication if W2 totally disposes all of T’s Estate (if W2 disposes of substantially all of T’s estate, there is nothing for W1 to act on)

REVIVAL: Issue: does revoking W1 automatically revive W1 (e.g. put back in operation)? Best understood by examining the 2 situations where it can arise
1. Physical Act:
a. Example: T executes W1 and thereafter executes W1, which revokes W1 (expressly or implicitly). T thereafter revokes W2 by physical act (e.g. by cancellation)
b. Rule: In California, W2 is not automatically revived; rather, W1 is revived only if T manifests an intent to revive W1. Oral statements by T at the time W2 was revoked are admissible.
2. Subsequent Instrument:
a. Example: T executes W1 and subsequently executes W2, which revokes W1 (expressly or implicitly). T subsequently revokes W2 by codicil.
b. Rule: In California, W1 is not revived unless it appears from the terms of the codicil that T wanted W1 revived

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REVOCATION BY OPERATION OF LAW:
OMITTED CHILD

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DEFINITION: A child born or adopted after all testamentary instruments are executed and not provided for in any testamentary instrument. (Testamentary instruments includes: (i) a will; (ii) a codicil; or (iii) a revocable intervivos trust created by the decedent during the decedent’s lifetime.)

CONSEQUENCE: Child receives a share of the decedent’s estate equal in value to that which the child would have received if the decedent had died w/out ever having executed any testamentary instrument. Thus, a share of assets decedent owned at death PLUS the assets held in any intervivos trust (Other gifts will have to be abated. Thus, revocation by operation of law).

EXCEPTIONS: Three exceptions;
1. Decedent’s failure to provide for the child in any testamentary instrument was both intentional and that intention appears from the testamentary instrument.
2. At the time of execution of the testamentary instrument, the decedent had one or more children and transferred by will or revocable intervivos trust substantially all of his estate to the parent of the omitted child.
3. The decedent provided for the child by transfer outside the testamentary instrument w/ the intention that the transfer is to be in lieu of any testamentary gift. Ex: after child is born, decedent purchases annuity for child  on these facts child would take nothing.

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REVOCATION BY OPERATION OF LAW:
OMITTED SPOUSE

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DEFINITION: Surviving spouse who married the decedent after all testamentary instruments are executed and not provided for in any testamentary instrument. (Testament. instrument includes: (i) a will; (ii) a codicil; or (iii) revocable intervivos trust created by decedent during his lifetime)
CONSEQUENCE: Spouse receives a share of the decedent’s estate equal in value to that which the spouse would have received if the decedent had died w/out ever having executed any testamentary instrument. Thus, a share of assets decedent owned at death PLUS the assets held in any intervivos trust (Other gifts will have to be abated. Statutory share omitted spouse receives is as follows: (i) ½ the CP and QCP owned by decedent at death or in any revocable intervivos trust (b/c surviving spouse already owned ½, they end up with 100%); (ii) a share of the SP equal in value to what the spouse would have received if decedent had died w/out ever having executed any testamentary instrument (will or trust), but in no event more than ½ the value of the SP estate.
EXCEPTIONS: Three exceptions;
1. Decedent’s failure to provide for the spouse in any testamentary instrument was both intentional and that intention appears from the testamentary instrument.
2. Decedent provided for the spouse by transfer outside of the testamentary instruments w/ the intention tat the transfer be in lieu of any testamentary provision.
3. Omitted Spouse signed a waiver (voluntary relinquishment of a known right, whether signed before or during marriage). Spouse can waive any and all probate rights. Requirements: (i) must be in writing; (ii) full disclosure by decedent of his finances; (iii) independent councel by the waiving spouse (Exceptions: waiver still enforceable if waving spouse had/should have had knowledge of the finances or the waiver was in fact fair). However, unenforceable if waiver is unconscionable

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REVOCATION BY OPERATION OF LAW:
OMITTED DOMESTIC PARTNER

&

REVOCATION BY OPERATION OF LAW:
FINAL DISSOLUTION OF MARRIAGE OR DOMESTIC PARTNERSHIP

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OMITTED DOMESTIC PARTNER:
1. DEFINED:
A. 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
B. Partners must have filed a declaration of domestic partnership w/ the Sec. of State
2. Note: Recent legislation gives them same rights and obligations as married persons. Domestic partners may hold property as CP or QCP. Consequently, the rules for omitted domesitic partners are the same as for omitted spouses;

FINAL DISSOLUTION OF MARRIAGE OR DOMESTIC PARTNERSHIP:
Rules: four rules regarding testamentary gifts
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 termination of domestic partnership.
2. Legal Separation does not count.
3. Devise is reinstated if the will is unchanged and T remarries the former spouse, or reestablishes another domestic partnership with the former domestic partner.
4. These rules do not apply if the will expressly states otherwise (e.g. “even if my marriage ends, my wife is to take everything”)

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CLASSIFICATION

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TYPES: 4 types of gifts (Specific, General, Demonstrative, and Residuary)
SPECIFIC DEVISE:
1. Defined: specific devise is a gift of a particular item (nothing unique about it)
2. Rule: T must have the intent that the beneficiary take this particular thing, and nothing else
3. Objective: must look to objective manifestations of T’s intent.
4. Note: Always specific when it involves Real estate or T uses word “my” or shares of close corporation or an antique
GENERAL DEVISE:
1. Defined: payable out of the general assets of the estate (nothing unique or special about gift)
2. Note: executor can make good the gift to the beneficiary either with the actual gift or the FMV of the gift as measured by its value at the time of T’s death
DEMONSTRATIVE DEVISE:
1. Defined: a hybrid b/w a specific and general gift
2. Note: It is a gift from a particular fund, but if that is not enough, the executor can resort to general property. (e.g. “to Jon I leave $1k from my account at Citi.” If at T’s death there is only 900 in the account, then rest paid from general assets if necessary).
RESIDUARY DEVISE: All other property not expressly disposed of in will (easy to recognize)
WHY CLASSIFY: 3 reasons.
1. Only specific gifts adeem by extinction (if classified as general, no ademption by extinction)
2. Typically, only general gifts adeem by satisfaction (specific gifts can but uncommon)
3. Priority whereby gifts to Beneficiaries have to be abated to come up w/ a statutory share

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ADEMPTION BY EXTINCTION

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DEFINED: When a specific gift fails b/c T did not own the property at T's death.
1. CL Test: simple mechanical test. If T did not own the specific property at his death, the gift failed, or adeemed by extinction. Intent was important only for determining whether gift was general or specific.
2. CA Test: 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. There may be situations where T does not own the property at death, but T did not intend the gift to fail. Thus, in CA, we do not use a simple mechanical test.
3. EXCEPTIONS: No ademption by extinction in California in the following situations (common thread is that T did not intend the gift to fail):
a. Securities Changing Form: arises b/c of mergers, stock splits, stock dividends, or reorganizations of corporations and stock is re-issued.
b. Conservator Sells off Assets: in CA no ademption by extinction, instead, B takes net sales price b/c B did not sell the property (the conservator did)
c. Eminent domain award, casualty award, or an installment sale of property in which T holds the deed of trust as a security for sale: in CA, there is no ademption by extinction w/ respect to any of these AFTER T’s death. If paid during T’s lifetime try to see if you can trace to one bank account (especially if no other transactions in that account outside of the initial deposit from the occurrence) then B may be able to argue that T intended no ademption by extinction and for B to take all the proceeds, even those payable during T’s lifetime.
d. In all other situations: (i) classify the gifts as general; and (ii) try to trace

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ADEMPTION BY SATISFACTION

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DEFINED: T gives the B an inter vivos down payment on the devise

How to establish a satisfaction: 4 alternative ways:
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. B 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, because the property no longer exists in T' estate.

What if beneficiary receives a satisfaction but predeceases the T?
RULE: Where the issue of the predeceased B takes the devise under the anti-lapse statute, the issue of the predeceased B is treated as if he or she had received the satisfaction, unless T's will or contemporaneous writing states otherwise.

How to value the satisfaction if not made in cash?
1. If the value of the satisfaction is expressed in the contemporaneous writing of the testator or in a contemporaneous writing of B, that value is conclusive.
2. In all other cases, the property is valued at its FMV, measured at time the transferee came into possession of the property.

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ADVANCEMENTS

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Definition: Recall that a satisfaction is an inter vivos down payment on a devise. An advancement is similar to an inter vivos down payment made by an intestate to an heir apparent.
1. Thus, a satisfaction deals with a testacy situation (decedent dies with a will), whereas an advancement deals with an intestacy situation (decedent dies without a will).
2. The concept is identical and the rules for advancements are nearly the same as for the rules for satisfactions.

Establishing an Advancement: 2 alternative ways
1. Intestate declares in a contemporaneous writing that the gift is an advancement.
2. Heir acknowledges in a writing (at any time) that the gift is an advancement.

What if heir-apparent receives an advancement but predeceases the Intestate?
1. The issue of the heir-apparent is not treated as having received an advancement, unless the advancement provides otherwise.
2. This is the opposite of a satisfaction.

How to value the advancement if not made in cash?
1. 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.
2. In all other cases, the property is valued at the FMV at time the time the transferee (heir) came into possession of the property.

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Contract to Not Revoke (or to make a will)

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Requirements for a Contract to Not Revoke (or to Make a Will): 5 alternative ways in CA
1. The will or other instrument (e.g. a trust) states the material provisions of the K.
a. Example: T's will states: "In consideration of the $1k Abel has given me, I have promised
to devise Blackacre to Abel, and I hereby do devise Blackacre to Abel.")
2. Express reference in the will to another contract.
a. Terms of the K may be established by extrinsic evidence, including oral testimony.
b. Example: T's will states, "Pursuant to my K, this is my will." Terms can be established by extrinsic evidence, and that evidence is not limited to written evidence. It can include oral testimony. In this regard, SOF is NOT a problem, even if subject matter of K is real property.
3. There is a writing signed by the decedent evidencing a K
4. There is clear and convincing evidence of an agreement b/w decedent and promisee that is enforceable in equity. (This is estoppel.)
5. There is clear and convincing evidence of an agreement b/w decedent and a third person for the benefit of the claimant that is enforceable in equity. (This is estoppel, too.)
When the Cause of Action Accrues
1. General Rule: Cause of action accrues when decedent dies
2. Rationale: No cause of action arises at the time of breach b/c a moment b/f decedent dies, decedent can execute a new will which would be in compliance w/ the K. In such a case, the promisee has no damages.
3. Exception: cause of action accrues during decedent's lifetime if decedent is engaging in conduct which would be a fraud on the promisee.

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Joint and Mutual Wills

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DEFINITIONS:
1. Joint Wills: The will of 2 or more people on one document. Provisions do not have to be reciprocal. When 1st person dies, will is probated. When 2nd person dies, will is probated again

2. Mutual Wills: (a.k.a Reciprocal Wills): The separate wills of two or more people which are reciprocal. Example: H and W execute their own separate wills. H leaves everything to W, and W leaves everything to H.

3. Joint and Mutual Wills: Reciprocal provisions on one instrument.

RULES:
1. The execution of a joint will, or mutual will, or a joint and mutual will does not create a presumption of a K to not revoke or make a will.
2. But it may be evidence of a K, in conjunction with other factors.

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Remedies Available to Promisee:
For Contracts (to make a will or devise or to not make a will or devise)

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REMEDIES AVAILABLE TO PROMISEE:

1. Damages

2. Specific Performance: ∏ can seek to force the executor to comply w/ the terms of the K.

3. Constructive Trust Remedy: The court can probate the will as it is, giving the property to the devisee, and make the devisee a constructive trustee, who will have only one obligation: to transfer the property to the promise of the K.

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Important Distinction Regarding QCP: Wills & Trusts Versus Divorce

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Note: the probate definition for QCP is different from the definition for divorce.

- For divorce purposes, QCP includes all real property, wherever located.

- For decedent’s estates purposes, QCP is limited to real property located in CA

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SPOUSAL/DOMESTIC
PARTNER PROTECTION

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Defined: Protection is given to surviving spouse or dom. p’ner based upon our CP system
Four rules to protect the surviving spouse or domestic partner:
1. Protection regard CP: T can dispose of only ½ CP(surviving spouse/dom. p’ner owns other ½)
2. Protection regarding QCP: T, assuming T is the spouse or domestic partner who acquired the QCP, can dispose of only ½ of the QCP (surviving spouse or surviving domestic partner owns other half at death of T). Note: non-acquiring spouse or dom. p’ner has no testamentary pwr to dispose of acquiring spouse's/dom. p’ner's QCP during lifetime of acquiring spouse or dom. p’ner
3. Widow's election (which includes a widower and a surviving domestic partner): when T attempts to dispose of more than ½ the CP or ½ the QCP. Widow (or widower or surviving dom. p’ner) may invoke widow's election. Means survivor may accept gift given in T's will in lieu of statutory right (1/2 CP and QCP); called “taking under the will." Or survivor can renounce all benefits given in the will and confirm rights to ½ the CP and QCP; called taking "against the will."
4. Protection regarding illusory transfers of QCP & widow's (or surviving dom. p' s) election: General rule: intervivos transfer by the decedent (the acquiring spouse or the acquiring dom. p’ner) of QCP to a 3rd person w/out consideration is allowed. Reason: Survivor, i.e. the non-acquiring spouse or dom. p’ner, had a mere expectancy in the QCP and not a prop. right Exception: transfer not allowed when transfer of QCP is deemed illusory and surviving spouse or dom. p’ner invokes widow's electionIllusory when the decedent (the acquiring spouse or acquiring dom. p’ner) retained some interest/control over the prop. The interest can be an ownership interest, a use, or a co-tenancy. Upon death of the decedent (the acquiring spouse), the surviving spouse/dom. p’ner may require transferee to restore 1/2 of the QCP to decedent's estate.

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UNWORTHY HEIRS OR BENEFICIARIES: KILLERS

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a. RULE: Those who feloniously and intentionally kill the decedent cannot take any benefits under the will or by intestacy. Which killers?

b. Proof needed:
1. A conviction (which includes a plea of guilty) is conclusive.
2. In other cases, probate court determines guilt by a preponderance of evidence

c. Consequence of finding that the killing was felonious and intentional: Killer is deemed to have predeceased decedent, and anti-lapse statute does not apply (Just a legal way of saying that the killer does not take and the issue of the killer does not take)

d. Problem of one joint tenant feloniously and intentionally killing the other joint tenant: There is a severance of the joint tenancy so that the killer does not have a right of survivorship. Note: killer does not lose his or her ½ interest in the property.

e. Problem of a beneficiary feloniously and intentionally killing the insured: killer-beneficiary does not take any benefit under the insurance K

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INTESTATE SUCCESSION:
SURVIVING SPOUSE/DOMESTIC PARTNER

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1. CP: Surviving spouse or domestic partner inherits decedent's ½ of the CP.
a. Note: surviving spouse or domestic partner already owned ½ of the CP.
b. Thus: surviving spouse or domestic partner ends up w/ 100% CP

2. QCP: surviving spouse or domestic partner inherits decedent's ½ of the QCP
a. Note: the surviving spouse or domestic partner owned ½ QCP at decedent's death.
b. Thus: the surviving spouse or domestic partner ends up w/ 100% of the QCP.

3. SP: Surviving spouse or domestic partner inherits decedent's SP as follows:
a. If decedent leaves no issue, parents, brother or sister, or issue of a deceased brother or sister, all to surviving spouse or domestic partner.
b. If decedent is survived by one child, or issue of a predeceased child, ½ to surviving spouse or domestic partner and ½ to child or child's issue.
c. If decedent is survived by 2 or more children, or issue of predeceased children, 1/3 to surviving spouse or domestic partner and 2/3 to the children or their issue.
d. If decedent is survived by no issue, but leaves parent or parents or their issue, then ½ to parent or parents or their issue, ½ to surviving spouse or domestic partner

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INTESTATE SUCCESSION:
ALL OTHERS

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All Others: Intestate Leaves No Surviving Spouse or Domestic Partner

Intestate scheme:
1. Issue
2. Parents
3. Issue of Parents
4. Grandparents
5. Issue of grandparents
6. Issue of a predeceased spouse or domestic partner: a spouse or domestic partner who died while married to or in partnership w/ the decedent; it is that spouse's or domestic partner's issue, i.e., decedent's former step-children.
7. Next of Kin
8. Parents of a predeceased spouse or domestic partner: This is the decedent's former in-laws.
9. Issue of parents of a predeceased spouse or domestic partner.
10. Escheat

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INTESTATE SUCCESSION:
PER CAPITA/REPRESENTATION

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1. Whenever issue take by intestacy, or if a will or trust provides for issue to take w/out specifying the manner, they take in the manner provided in §240 of the Probate Code:
a. Issue of the same degree take "per capita," or equally and in their own right.

b. Issue of more remote degree take "per capita with representation."

c. Under §240, make a distribution (i) at the first level someone is living and give shares to all living persons at that generation; and (ii) to deceased members of that generation who leave issue.

2. If a will or trust calls for a distribution "per stirpes" or "by right of representation," or by "representation," we make a different distribution.
a. Such terminology requires a "strict per stirpes" distribution.

b. That means you make the distribution at the first generation or first level, even if everyone is dead, so long as they left issue. The issue then step into the shoes of their predeceased ancestor.

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INTESTATE SUCCESSION:
ADOPTED CHILDREN
&
NON-MARITAL CHILDREN
&
HALF-BLOODS

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ADOPTED CHILDREN:Rule:adopted child always treated as a natural child of adopting parents
1. Natural Parents: Regarding the adopted child's natural parents, the adoption severs the relationship. Exception: The relationship to the natural parent is not severed if the adoption is by the spouse or domestic partner of the natural parent, or after the death of either the natural parents.
2. Stepchildren or foster children: the child is treated as having been adopted if 3 elements met: (a) The relationship began during the child's minority; (b) It continued throughout the parties' lifetimes; and (c) It is established by clear & convincing evidence that the stepparent or foster parent would have adopted but for a legal barrier (e.g. biological parent wont consent to adoption)
3. Equitable adoption (a.k.a. adoption by estoppel): parties hold themselves out as parent & child
NON-MARITAL CHILDREN:
1. In California, marital status of the parents is irrelevant. The key is whether a parent-child relationship existed, irrespective of marital status.
2. In a dom. p’hip, a parent-child relationship is established as to the non-birthing partner by means of one of several presumptions: (A) Child born during the dom. p’ship is presumed to be the child of the non-birthing dom. p’ner; (B) If the non-birthing dom. p’ner and the birthing partner formed (or even attempted to form) a domestic p’ship in a lawful manner after child’s birth and (i) the non-birthing dom. p’ner is named on the birth certificate, or (ii) the non-birthing dom. p’ner makes a voluntary promise to pay child support or is ordered to do so by a court, then parent child relationship is presumed to be established b/w the child and the non-birthing dom. p’ner.
HALFBLOODS: Defined: relatives who have only 1 common parent and not 2; Rule: Relatives of the half blood inherit the same as the whole blood

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POSTHUMOUS CHILDREN

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POSTHUMOUS CHILDREN:

Defined: a child conceived during the lifetime of the intestate or testator, but born after the death of the intestate or testator.

Rule: Posthumous children are deemed heirs of the intestate and beneficiaries of T's will.

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LAPSE AND ANTI-LAPSE

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Note: For a B to take a devise, B must survive T; dead people do not take.
Rule of Lapse: If B does not survive T, B's gift lapses, or fails. Consequence: if a gift lapses, unless a contrary intent is expressed in the will, the gift falls into the residue, if there is one; if it is already part of the residue, goes to other co-residuary devisees. Otherwise, gift goes by intestacy.
Anti-Lapse Statute: If the anti-lapse statute applies, the rule of lapse wont apply.
a. California's Anti-Lapse Statute: Applies only if the devisee who predeceased the T was "kindred” of T, or kindred of a surviving, deceased or former spouse or dom. p’ner of T, and this predeceased devisee leaves issue. If so, issue of that predeceased devisee steps into the shoes of that predeceased devisee.
b. Note: For the anti-lapse statute to apply, devisee must be "kindred (blood relative) of T or T's spouse or domestic p’ner-but the devisee can’t be the spouse or the domestic p’ner.
c. Note also: the issue of the predeceased devisee who take under the anti-lapse statute take in the manner provided in §240: those of the same degree take "per capita," while those of more remote degree take by "per capita with representation"
d. In CA, both the rule of lapse and the anti-lapse statute applies to wills & also revocable trusts.
e. In CA, the anti-lapse statute also applies to class gifts. E.g.: T executes a will devising Blackacre "to my children." At the time the will was executed, T had three children, A, B, and C. After T's will is executed, C predeceases T. C leaves children C1 and C2. Thus, at T's death, the survivors are: A, B, C1, and C2. Under California's antilapse statute, C's gift does not lapse; rather, C1 and C2 take C's devise. Thus, A gets 1/3, B gets 1/3, and C1 and C2 take C's 1/3 (C 1 and C2 each taking 1/6).

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SIMULTANEOUS DEATH

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Note: under the rule of lapse, dead people cannot take by will or trust or intestacy.
Issue: Simultaneous death involves the following problem: 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. This is the Uniform Simultaneous Death Act which California has adopted.
Application: best understood in the following 5 situations:
1. T and devisee die under circumstances of simultaneous death, a plane crash, for e.g. Cannot tell by clear and convincing evidence that devisee survived T - not even for one second. If you can establish by clear and convincing evidence that devisee survived T for even a second, devisee takes. But if you cannot so establish by clear and convincing evidence that devisee did survive T, the Uniform Simultaneous Death Act provides that devisee is deemed to have predeceased T. Thus, the devisee will not take. The gift will either lapse, or be distributed under California's anti-lapse statute.
2. A and B, are JTs w/ right of survivorship, and die under circumstances of simultaneous death: you cannot tell by clear and convincing evidence who survived whom. In such case, you sever the JT: ½ the JT property goes to A's estate and ½ goes to B's estate.
3. H & W or dom. p’ners have wills and own CP or QCP and die under circumstances of simultaneous death: you cannot tell by clear and convincing evidence who survived whom. In such case the CP and QCP will be severed: [a] ½ CP and QCP will be distributed through the H's or one dom. p’ner's estate; and [b] ½ the CP and ½ QCP will be distributed through the W's or the other dom. p’ner's estate.
4. A life insurance policy and the insured and B die under circumstances of simultaneous death: you cannot tell by clear and convincing evidence that the beneficiary survived the insured. If it cannot be so established that the B survived the insured, then B is deemed not to have survived the insured. [a] See if there is an alternative B named.[b] If there is no alternative B, the policy proceeds are paid to the insured's estate: to the residuary devisees in the will if there are any, but if none, the proceeds will go to the insured's heirs. [c] But Note: if the policy premiums are paid for w/ CP or QCP and the insured and B are spouses or dom. p’ners, then 1/2 the proceeds go to the H’s or one dom.p’ner's estate, and ½ go to W's or the other dom p’ner's estate.
5. The intestate and heir die and the 120-hour rule: Here the rule is a little different. 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 deemed that the heir did not survive the intestate, and the heirs are determined accordingly. This 120-hour rule does not apply if the property would escheat.

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AFTER ACQUIRED PROPERTY
&
INCREASE DURING T’S LIFETIME
&
INCREASE AFTER T’S DEATH AND DURING PROBATE

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AFTER ACQUIRED PROPERTY: Property acquired after the will was executed
Rule: A will passes all property the testator owned at death, including
after-acquired property.
INCREASE DURING TESTATOR’S LIFETIME:
Rule: Stock dividends or splits paid during testator's lifetime go to B if the stock is owned by T at T's death.
INCREASE AFTER TESTATOR’S DEATH & DURING PROBATE:
1. Rule: Regarding specific devises, all increase goes to the beneficiary:
a. Stock dividends
b. Stock splits
c. Rents
d. Cash dividends
e. Interest on indebtedness
2. Rule: general devisees do not receive any increase.
a. Exception: General pecuniary gifts (gifts expressed in a dollar amount, such as "$10k to Abel,") earn interest on such gifts not distributed 1 year after T's death. Thus, e.g, if T died 1/1/05 and the estate was not distributed until 6/1/06, general devisees would receive interest for 6 months (from 1/1/06 though 6/1/06).
b. The interest received is a formula based on the legal rate.

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ABATEMENT

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Defined: The process by which certain gifts are decreased
Arises when: (a) When it is necessary to pay for the share of the omitted child or omitted spouse or omitted domestic partner; (b) When there is an omitted child/spouse/dom.p’ner, the gifts of devisees have to be decreased to come up with the statutory share of the omitted child or omitted spouse or omitted dom. p’ner; (c) Thus, whenever you have an omitted child/spouse/domestic p’ner, there will almost certainly be the related issue of abatement.
Order of abatement for omitted children and omitted spouses and omitted dom. p’ners:
a. First abate property not passing by the decedent's will or revocable inter-vivos trust.
b. Then abate from all beneficiaries of T's will and revocable inter-vivos trust pro rata, in proportion to the value of the gift received.
c. Note: No distinction is made between specific, general, and residuary gifts.
d. Exception for specific gifts: the court can exempt the specific gift if abating the specific gift would defeat the obvious intention of T. (Obvious intention must appear from the language in which the specific devise is created, or from the general terms of the will or trust  There are no cases indicating what means "obvious intention.")
e. Note that there is no favoring of relatives over non-relatives.
f. Note that the order of abatement for omitted children/spouses/omitted dom. p’ners is not the order of abatement to pay off general debts of the decedent. The order to pay off general debts of the decedent is: [i] intestate property; [ii] residuary gifts; [iii] general gifts to non-relatives; [iv] general gifts to relatives; [v] specific gifts to non-relatives; [vi] specific gifts to relatives. To the extent they can be satisfied from designated fund, demonstrative gifts are treated as specific gifts.

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EXONERATION

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Defined: The debt is extinguished

Common law view: If testator devised a specific gift subject to an encumbrance (e.g. a mortgage) for which testator was personally liable, the executor was required automatically to pay off the debt before passing the property to the beneficiary.

California View: No automatic exoneration. The devisee takes the specific gift subject to the encumbrance, unless the testator's will states that the specific gift is to be exonerated. Moreover, a general direction "to pay all my just debts" is not sufficient to exonerate. If the gift is exonerated, in the absence of a contrary intention in the will, other specific gifts do not abate.

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WILL SUBSTITUTES

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Types: (1) Gifts Causa Mortis; and (2) Totten Trusts
GIFTS CAUSA MORTIS:
1. Defined: A gift made in contemplation of imminent death
2. Property that can be the subject of a gift causa mortis: personal property only; no real property
3. Rule: Donor must make a delivery of the property to donee. Delivery can be one of three forms: Actual, symbolic, or constructive delivery.
a. Actual delivery/manual delivery: Corpus itself transferred to donee (Eg: cash given to donee)
b. Symbolic delivery: Something representative of corpus is given to donee. Typically a writing evidencing ownership. Eg: Cash not available for manual delivery, but donee is given a bank document evidencing ownership of account, i.e., quarterly statement of account’s interest earned
c. Constructive delivery:
(i) CL view: donee is given a key that unlocks a box or room, in which is located the corpus, which is too big or bulky for manual delivery. The key can be literal, or figurative, e.g. a treasure map leading to buried treasure. Heart to a CL constructive delivery is the opening of access to a room wherein is corpus, that is that is too big, or bulky, or otherwise unavailable.
(ii) Modern view: A constructive delivery will be found whenever the donor has done everything possible to effectuate a delivery, and there is no issue of fraud and mistake.
4. Rule: If donor survives the peril, the gift is revoked by operation of law.

TOTTEN TRUSTS: see trusts notes