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172 Cards in this Set
- Front
- Back
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will validly executed
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intent of testator, capacity of testator and conformed to formalities
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3 areas of revocation and revival
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techniques of revocation, revival, DRR
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3 elements of distribution
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types of testamentary gifts, effect of changes, restrictions on testamentary power
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3 requirements of validity
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capacity, intent, formalities
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when is capacity measured
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time of execution
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what two things must testator have to execute will
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old enough and sound mind
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how old to execute a will
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generally 18
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what is sound mind for execution of will
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testator presumed sane, but must know nature f property, who are natural objects of bounty and understand the nature of the act
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what is insane delusion for will execution
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not just extreme beliefs but false belief due to a mental disease that is held despite any evidence to the contrary
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who has burden to show mental deficiency
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attacker
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who attests a valid attested will
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testator and witnesses
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what is undue influence
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subjective test asking was this testator unduly influenced - volition overcome by mental of physical coercion
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what intent is required for will
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testator intended the doc to be a will
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undue influence
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invalid if testator's will was overcome by undue mental or physical coercion
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who has burden to prove undue influence
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attacker
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what is an interested witness
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where one or two of the 2 subscribing witnesses is a B
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elements of burden on B - interest witness
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must be one of two subscribing witnesses, shifts burden of proving lack of undue influence , creates a rebuttable presumption that B commited undue influence - can be rebutted by facts
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unrebutted presumption of undue influence by interested witness
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purges the gift to extent that B would have taken in intestacy or what they would have taken in prior will
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who has burden when B drew up the will
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beni if course
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3 remedies for undue influence
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will contest, constructive trust damages
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what are 4 miscellaneous problems with wills
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sham wills, conditional wills, deeds as wills, letters as wills
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what is fraud in execution in wills
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testator does not know contents of writing
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what is fraud in inducement in wills
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B defrauds testator as to extrinsic fact - Hello I am your long lost daughter when that is not true - would T had made the same gift if they had known the facts - if yes it is valid if no then not valid
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two kinds of problems with ambiguities in wills
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patent and latent
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two kinds of problems with ambiguities in wills
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patent and latent
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fraud question july 1992 ? #4
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notes on that ?
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mistake in will - in the execution
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not a fraud but testator is mistaken - doesn't really know thy are signing a will - it is invalidated
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mistake in will - in the execution - knows it is a will but not the contents
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does not invalidate that will
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mistake as to a fact - inducement
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no relief is allowed - will is valid
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mistake in description - 2 kinds
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patent and latent mistake
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effect of patent mistake - face of will mistake - 3 rolls royces
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traditionally no extrinsic evidence allowed to clarify and no gift
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effect of latent mistake -gift to niece joan grey - more than 1 joan grey's
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traditinally extrinsic evidence allowed to clarify and gift does no fail
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modern rule for latent and patent mistakes
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modern rule allows extrinsic evidence to clairy
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sham will valid?
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attacker shows by clear and convincing evidence that is a sham then no
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conditional will valid
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effectuate testator's intent - maybe condition doesn't need to be satisfied - extrinsic evidence allowed to show wheterh or not
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deed as will valid
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was there an intent for deed to operate as will if they never delivered deed - cross over to delivery issue in RP
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letter as will valid?
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was requisite testamentary intent present
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two types of valid wills
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attested and holographic
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can testator sign will by proxy
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yes
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testator have to sign an attested will at end
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no - anywhere in will
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requirements for proxy signing will
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in testator's presence and at testator's direction
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publication - testator needs to do what for attested will
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sign or acknowledge in presence of witnesses
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must witnesses be aware they are signing a will
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generally yes
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how many wtnesses for valid attested will
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2
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qualifications for witnesses
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generally competent
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does interested witness nullify will?
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no - only affects interested witnesses gift not whole will
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wtinesses must be present for testators publication?
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yes
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do witnesses need to sign in presence of testator and each other
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no they just must be present for publication
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witnesses - july 1996 #6
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presence requirement
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areas of conern around witnesses
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number, qualifications, presence - look for interested witnesses
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what is holographic will - requirements
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all material provisions must be in testator's hand writing
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can fill in the blank will be valid as HW
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yes so long as material provisions are in T's handwriting
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issues around integration of other documents to holographic will
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more than page but all intended to be part of execution - all pages must meet HW requirements - in T's handwriting
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can a non-holographic material provision be integrated into a HW
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no all pages must conform to HW requirements
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can other documents that are typewritten be incorporated into a HW
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yes
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can HW be signed by proxy
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no
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must an HW be dated to be valid
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no
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2 problems for undated HW
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another will or incapacity attack
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2 wills one undated HW other not which prevails
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dated attested will is presumed to be more recent - rebuttable presumption
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if T lacked capacity and there is undated HW - effect
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must prove it was executed at time the T had capacity
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HW and interested witness - signed and is B
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no witnesses required so discuss does the presumption of undue influence apply? - may purge gift intestate share or prior will if not rebutted
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HW - testamentary intent required?
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Yes
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components - what are ways docs get into wills
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incorporation by ref, acts of independent significance, third party wills
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2 elements of incorporation by reference to be given testamentary significance
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doc presently existing at time will is existed - not physically present but existing, adequate description of doc
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rules for integration into will
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presently exist at time of execution, physically present at time of execution,
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what are acts of independent significance
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refer to other docs that are part of T disposition if acts of independent significance outside T's will
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act of independent sig - T gives to future barpassers class
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yes because roster for class is independent of will
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can T gift through 3rd p will
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yes - 3rd party acts independently = acts of independent significance
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incorporation by ref and acts if independent signif
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july 1994 #6 and Feb 1995 #6
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what about other states formalities - feb 1991 #1 - probate will in CA not formed in CA
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if will satifies CA formalities then valid, satisfy formalities in other state then valid for probate in CA, if meets formalities of T domicile at execution or death then valid
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codicils - second testamentary instrument - formalities
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must be properly witnessed or attested - can be HW after witnessed or vice a versa
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contracts re: wills where married couple agrees how to distribute prop - one dies and survivor wants to change prior contract - what remedies availible to wronged B
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(1) B must prove contract - a writing or express declaration in will (2) if valid contract then if both alive then no remedy because they can change agreement if one dead then possible constructive trust - if both parties dead then constructive trust
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what happens when a surviving spouse wants to waive rights - elements
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only applies to agreements made after marriage IF (1) waiving spouse signed a writing, (2) waiving spouse was represented by inde counsel, (3) fair and reasonble disclosure - cannot be unconscionable even if elements have been met at time of enforcement
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2 kinds of revocation of will prior to death
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by written instrument or by physical act
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2 kinds of written instrument revocation
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explicit - will 2 revokes will 2 - implicit - to extent 2 is inconsistent it revokes 1 - can be total inconsistency
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revocation by physical act - 3 elements to consider
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nature of physical act, was it complete or partial, did the act actually amend?
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revocation by physical act - describe nature of valid act where will cannot be found
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testators intent is key - in possession at one time but at death not found it is presumed destroyed with intent to revoke
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revocation by physical act - will found partially destroyed
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must be proven intent to destroy
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revocation by physical act - types of physical acts that revoke
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tearing or material portion, burning, writing void etc - drawing lines through, erasing
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revocation by physical act - significance of physical act
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can be complete or partial revocation - based on testator's intent - 4 separate clauses with only last clause xed out - first three stand but 4th is revoked
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revocation by physical act - copying more than one executed
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if one copy is destroyed then all copis are revoked
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revocation by physical act - copying - destroys an unexcuted copy
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no effect on executed will
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revocation by physical act - lost will or destroyed in fire - no intent to revoke
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if wil can be proven through unexecuted copy or testimony then it will be admitted to probate
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amendment by physical act - main point to look at
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what is effect of physical act
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amendment by physical act - increase of gift
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is an invalid amendment
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revocation by proxy?
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revocation by T or another person in T's presence or by T's direction is valid
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amendment by physical act - decrease of gift
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can be valid
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4 ways to revive a revoked will
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revocation of revoking instrument, re-execution, republication by codicil, DRR
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two ways a to revive by revocation of revokng instrument
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by written instrument, by physical act
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will 1 revoked by 2, 2 revoked by 3 - rule?
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1 is revived only to the extent that 3 says it is revived - face of 3 no extrinsic instrument
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will 1 revoked by 2, 2 is revoked by physical act - result?
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1 is revived to the extent T intended 1 to be revived when 2 was revoked.
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will 1 revoked by 2, 2 revoked by physical act extrinsic evidence allowed
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yes
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revival by re-execution , will 1 revoked - then T re-executes through witnesses attestation - rule
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revived if witnesses sign after publication
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DRR applies in what circumstances
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T has valid gift, that they revoke to make an alternative distributions that fails - DRR can revive if that effectuates T intent
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DRR - three kinds
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revocation by operation of law, by ex press instrument, revocation by physical act
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DRR rules for rev by express instrument
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if mistake on face of revoked or revoking instr or both the extrinsic evidence allowed - DRR will revive mistake not on face then DRR not avilible
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revocation by physical act - 1st valid then revoked and second invalid - DRR effect?
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to extent 2nd consistent with 1 DRR revives but 2nd inconsistent no DRR
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DRR 1st valid then revoked and 2nd revoked to revive 1st
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no DRR
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valid then revoked by interlineation DRR - decreases and increases
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look to T intent
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4 types of testmentary gifts
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specific, demonstrative, general residuary
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distribution timeline
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x -> will Y T's Death -> Z -> probate
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intestate property defined
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does not pass through will
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testamentary gift - residuary
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remainder of T estate after distribution, taxes, creditors etc
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if a valid resid clause can property go intestate
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no
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testamentary gift - general gift
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no particular item or source - I give $ to joe
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testamentary gift - demonstraitve
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hybrid between general and specific - money to come from specific source
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testamentary gift - demonstrative when not enough to complete gift
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generally it can come from general assets
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testamentary gift - specific
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a particular item
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categories of changes for distribution 3
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property changes, debts and claims and people
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3 kinds of changes to property for distribution
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ademption, satisfaction and advancement, increase
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ademption rules maj min
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P no longer in estate - maj the specific gift is ademed by extinction and they get nothing but if tracing can identify asset then min gives - ex give house house is destroyed maj nothing min insurance proceeds
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is there partial admeption
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yes
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3 escapes devise from ademption
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classification of devise, time of death construction, non-substantial change in form
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ademption escape devise of classification fiction
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call it a demonstrative gift instead of specific
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ademption - T gives spcific gift like car then at death there is a different car
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time of death construction court can give the gift in that class - the subsequent car
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ademption - non-substantial change in form - feb 91 #1 - has ademption classification pronblem
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like a bank account that was moved to different bank
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what triggers change in P ssatisfaction and advancement
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inter vivos gift - look to effectuate T intent
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what gifts does satisfaction have to do with
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specific , demonstrative or general gifts
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what happens in satisfaction - change in property in distribution
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T transfers inter vivos gift intended to replace gift in will
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majority allows and min allows as evidence of satisfaction by inter vivos gift
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maj allows any extrinsic evidence minority requires writing
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what happens in advancement for changes in property
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inter vivos gift replaces an intestate share whereas satisfaction deals with valid will distribution
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what is big issue in advancement - part of intestate share or deducted before intestate distribution
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is gift intended to decrease linear shares or to have no impat on final distribution
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where to consider "hotchpot" in changes in P
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in advancement - all P owned at death plus advancements - advancement is included in intestate pie
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change in P - increase in value of asset (shares) before T's death describe split
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if a stock split is specific gift then B gets all shares because value is unchanged but general gift then B gets original share amount
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change in P - increase in value of asset (shares) before T's death describe split modern rule
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no distinction between specific or general B gets all
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hange in P - increase in value of asset (shares) before T's death describe dividend cash and shares
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cash goes to B for specific but dividend in shares split some treat like cash and others give dividend to B like specific gift
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change in P - increase in value of asset (shares) before T's death describe split or dividend feb 1991 # 1
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look for split and dividen
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change in P - increase in value of asset (specific) after T's death
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goes to devisee
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change in P - increase in value of asset (general or demonstraitve) after T's death
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interest only
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change in P - increase in value of asset (residusry) after T's death
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devisee gets whatever falls into residual
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effects of changes in debts and claims abatement
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T dies leaving a debt - get $ from T intent but otherwise court goes in this order to satisify debts, intestate, resid, general, demon, specific
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3 types of changes in debts and claims
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abatement, exoneration, retainer
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is abatement pro rata in each type of gift
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yes
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effects of changes in debts and claims - exoneration
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P subject to claim - look to T intent - if T is personally liable for claim then pay claim first and B takes free of lien, if P alone is liable for debt like mortgage then B takes subject to mortgage
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effects of changes in debts and claims - if T exec will then takes mortgage if P exonerated
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passes subject to that claim
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effects of changes in debts and claims - retainer - B owes T at time of death - is gift reduced
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B owes T at time of death - T rep can withhold gift unless T provided otherwise
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effect of changes in people in distribution - 3 types
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simultaneous death , killer B, lapse
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effect of changes in people in distribution - B kills T
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gift fails - constructive trust
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effect of changes in people in distribution - simultaneous death
feb 98 # 6 Rule if cannot determine order of death |
T and B die at same time where no way to determine who died first then rule is assume that B predeased T
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effect of changes in people in distribution - clear and convincing death
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follow order of death
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effect of changes in people in distribution - simultaneous death - special concern - both Ts
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look for roles carefully examine each person B predeceases T crosses - keep clear who is B and who is T
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effect of changes in people in distribution - lapse issue general rule
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if Devisee predeceases T their gift lapses
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effect of changes in people in distribution - lapse under survival period - give to children who live to 21 - effect
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if survival period add that to time to look at lapse - did B predecease T or die before survival period general rule is gift lapses
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effect of changes in people in distribution - lapse if no survival period and B alive at time of T death the effect
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B has a vested gift that can be passed on if B dies during probate
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effect of changes in people in distribution - lapse - anti lapse statute requirements - feb 91 # 1, feb 95 # 6, feb 98 #6 - anti lapse kindred but no lineal descendents
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B must be kindred-blood relative of T or T's current or former spouse and B must leave lineal descendents
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exception to valid anti-lapse statute
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T intent is explicitly contrary under survival clause - look for expression of contrary intent
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statutory restrictions on testamentary power - charities
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none in CA but examiner could give a statute - gifts to charities within 30 days under mort main
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statutory restrictions on testamentary power -spouses 3 circumstances to consider
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effect of CP system, forgotten or omitted spouse, effect of divorce
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statutory restrictions on testamentary power - CP system - T tries to dispose of all of CP through nice gift - widow(er)'s
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widow can accept gift and forgoe CP or assert CP right and forgoe gift
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statutory restrictions on testamentary power SP
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can always devise SP
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statutory restrictions on testamentary power - omitted spouses
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someone who is forgotten in will issue on purpose or not
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statutory restrictions on testamentary power - omitted spouse provision - will before or after marriage
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will has to precede will
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statutory restrictions on testamentary power - omitted spouse - intentional after marriage
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assume omission intentional
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statutory restrictions on testamentary power - omitted spouse will made prior to marriage
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OS gets all CP and intestate share of SP up to max of 1/2
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statutory restrictions on testamentary power - omitted spouse also omitted in revocable trust
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can claim as omitted spouse
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statutory restrictions on testamentary power - omitted spouse - ways to defeat 3
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intentional - T intent given effect, transfer(inter vivos gift) in lieu of share defeats OS claim, valid waiver defeats MS claim
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statutory restrictions on testamentary power - effect of divorce - prior to divorce provision in will
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P settlement at divorce is deemed to waive all the spouses rights unless there is a contrary agreement
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statutory restrictions on testamentary power - omitted child - will made prior to birth or adoption
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T dies child has valid claim to intestate share
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statutory restrictions on testamentary power - omitted child - revocable trust
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still a valid claim
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statutory restrictions on testamentary power - omitted child - intentional omission
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follow T intent
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statutory restrictions on testamentary power - omitted child - anti- contest clause
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not considered an intentional omission of child
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statutory restrictions on testamentary power - omitted child - is asserting an omitted child claim a will contest
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no
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statutory restrictions on testamentary power - omitted child - in lieu of
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if T takes care otherwise this defeats omitted child claim
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statutory restrictions on testamentary power - omitted child - T at time of will exec and devised substantially all to parent of child, can child make omitted child claim
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no
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statutory restrictions on testamentary power - omitted child - mistake - did not know they had child
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literal application child does not qualify because not born after will but mistake means child can assert a claim
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discuss intestacy in every essay?
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yes
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four reasons for intestate distribution
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no wll, will omits P - no resid clause, resid gift laspses, forced share - omitted child or spouse
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property division default if T does not specify
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per capita
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3 kinds of intestate distribution
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per capita, pure per stirpes, per capita by right of representation
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describe per stirpes distribution
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divide generations by blood line
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groups of heirs - hierarchal tier 1
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tier I surviving spouse, issue and parents and their issue
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per capita by right of representation
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all grandchildren get equal shares if all lineals and wife are dead
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