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143 Cards in this Set

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  • Back
How do intestacy issues usually arise?
Issues involving intestacy are likely to result from a partial or total failure of a will.
How is CP pass absent a will?
The decedent's share of community property passes to the surviving spouse; the other half of the community property already belongs to the surviving spouse.
Quasi CP- the decedent's one-half share of quasi-community property passes to the surviving spouse in the absence of a will;
~ the other half already belongs to surviving spouse.
How much SP does a surviving spouse take, in the absence of a will?
If a spouse survives, the spouse takes 1/3 or 1/2, depending on the number of children who survive.
~ The spouse takes all if the decedent leaves no surviving issue, parent, siblings, or issue of deceased siblings.
In the absence of a will, how does Property not passing to Spouse pass?
a. To Issue -
If issue (descendants) survive and all are of equal degree of kinship to the decedent (e.g, all children), property passes per capita (equally).
If issue survive and are of unequal degree of kinship: property passes per capita with right of representation.
~ If a will or trust calls for distribution to issue without specifying, the presumption is per capita with right of representation.
b. To Parents
c. To Issue of Parents (brothers, sisters, step)
d. To Grandparents or Their Issue
e. To Issue of Predeceased Spouse
f. None of the Above Survive - To Next of Kin - to the decedent's next of kin in equal degree.
~ The relative in the closest degree of kindred takes all except that if two or more collateral relatives are of the same degree, those who claim through the nearest ancestor take to exclusion of others.
g. Parents of Predeceased Spouse or Their Issue by Representation
h. Then Property Escheats to the State
What is the portion of Decedent's Estate Attributable to a predeceased spouse if the Decedent dies leaving neither spouse (remarriage) nor issue?
(i) Real Property that the decedent obtained from a previously deceased spouse who died not more than 15 years before the decedent and
(ii) personal property worth $10,000 or more for which there is a record of ownership obtained from a spouse who died not more than five years before the decedent may pass to the heirs of the previously deceased spouse if the decedent dies leaving neither spouse (remarriage) nor issue.
~ If there are no surviving issue, parents, or issue of parents of the predeceased spouse, this property passes to the decedent's next of kin.
Under Intestate Succession, what is the Rule on Simultaneous Death?
For purposes of intestate succession, if it can't be established by clear and convincing evidence that a person who would otherwise be an heir has survived the decedent by 120 hours, it is deemed that the person failed to survive the decedent.
If title to property depends upon the priority of death of two or more persons, and it cannot be established by clear and convincing evidence that one survived the other, the property of each person will be treated as if that person had survived the other (with exceptions for husband and wife, joint tenants, insured beneficiaries).
What is the result of a person disclaiming his interest?
A beneficiary or heir may disclaim any interest that otherwise would pass to the person from the decedent or the decedent's estate, with the consequence that the interest passes as though the disclaiming party predeceased the decedent.
~ If the disclaimed interest is a life estate, the remainder is accelerated.

The disclaimer must: (i) be in writing, (ii) be signed by the disclaimant, (iii) identify the decedent, (iv) describe the interest being disclaimed, and (v) state that there is a disclaimer and the extent of it.
~ The disclaimer must be filed within a reasonable time after the heir or beneficiary learns of the interest.
~ The disclaimer is deemed to have been filed within a reasonable time if it is filed within nine months after the later of the death of the decedent or the date the interest becomes indefeasibly vested.
Note: The time for making a disclaimer under federal law is nine months from the later of the decedent's date of death or the beneficiary's 21st birthday.
A disclaimer may be made by a guardian, conservator, or personal representative on behalf of an infant, incompetent, or decedent.

~ A disclaimer can be used to defeat creditors' claims.
Is there estoppel if benefits are accepted?
Yes. An interest cannot be disclaimed if the heir or beneficiary has accepted the property or any of its benefits.

1) Spendthrift Clause Does Not Prevent Disclaimer -
The right to disclaim exists irrespective of any limitation on the interest in the nature of a spendthrift clause or other restriction in the instrument of transfer.
What about Relatives of the decedent conceived before the decedent's death?
Relatives of the decedent conceived before decedent's death but born after inherit as if they had been born in the lifetime of the decedent.
How about Adopted Children?
An adopted child inherits from the adoptive parents and from their relatives, and the adopted parents and relatives inherit from the child.
Does An adoption sever the parent-child relationship between an adopted person and her natural parent?
An adoption severs the parent-child relationship between an adopted person and her natural parent for inheritance purposes unless:
(i) the natural parent and adopted person lived together at any time as parent and child (or the natural parent was married to or cohabiting with the other natural parent at the time of the child's conception but died before the child's birth) and
(ii) the adoption was by a spouse of either natural parent of the adopted person or after the death of either natural parent.
What is Adoption by Estoppel?
If a stepchild or foster child has been held out to the world as the parent's own child, the stepchild or foster child may be treated by a court as the descendant of the stepparent or foster parent who has died intestate although the child was never formally adopted (adoption by estoppel).
What about Non-marital children when a person dies intestate?
Nonmarital children inherit from and through their mother, but in many states not from the father unless paternity is established by:
(i) subsequent marriage of the parents,
(ii) an adjudication of paternity during the father's lifetime, or
(iii) clear and convincing proof of paternity after the father's death.
~ Statutes allowing nonmarital children to inherit from their mothers but not their fathers violate the Equal Protection Clause.

~ The Probate Code provides for inheritance rights where there is a parent-child relationship.
~ Methods of establishing a father-child relationship include the father's marriage to the mother (even if invalid), by his openly and notoriously holding out the child as his own, or by a court decree of paternity.
Do Relatives of Half Blood Inherit the Same Share as Whole Bloods?
Generally, collateral relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
What is the Doctrine of Advancements?
For an inter vivos gift to be an advancement toward an heir's intestate share, it must be stated to be such in writing.
~ The doctrine of advancements does not apply if the decedent leaves a will.
What If the recipient of property advanced fails to survive the decedent, is that property not taken into account in computing the intestate share to be received by the recipient's issue?
No. If the recipient of property advanced fails to survive the decedent, that property is not taken into account in computing the intestate share to be received by the recipient's issue unless a declaration or acknowledgement provides otherwise.
What is Hotchpot in terms of advancements?
Advancement are brought into "hotchpot."
~ This involves adding the value of inter vivos gifts back into the intestate estate and then computing shares.
In terms of Intestate succession, what about a debt owed to the decedent?
A debt owed to the decedent is not charged against the intestate share of any person except the debtor.
~ If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor's issue.
How many shares is a Relation through Two Lines of Relationship Entitled to?
A person who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship that would entitle the person to a larger share.
Which law controls succession to personal property, real property?
The law of the decedent's domicile controls succession to personal property; law of situs controls succession to real property.
When does a will operate and how is it construed?
A will operates on persons and property existing at the testator's death - but is construed in light of the circumstances at the time of execution.

[since a will is not operative until the testator's death, a beneficiary has merely an expectancy (not a property interest) until that time.]
What is necessary for an instrument to be admitted to probate?
To be admitted to probate, an instrument must either dispose of property, appoint an executor, or revoke another instrument; a will cannot serve solely to disinherit an heir.
Who may make a will?
An individual 18 years of age or older who is of sound mind may make a will.
~ A conservator may make a will for a conservatee if authorized by the court.
What Property may be Disposed of by Will?
The testator's separate property, the one-half of community property that belongs to the testator, and the one-half of quasi-community property belonging to the testator may be disposed of by will.

~ A will may make a disposition of property to any person, including a corporation or governmental entity.
What is Testamentary Intent?
The testator must have the present intent to make a particular instrument her will.

1. Ineffective Deeds as Wills - Lack Required Testamentary Intent:
An ineffective deed may be denied probate because of a lack of testamentary intent.

2. Sham Wills
Wills executed as a joke or sham are void.

3. Wrong Will Signed:
If the testator signs the wrong will by mistake, the instrument signed is usually denied probate.
What is a Conditional Will?
A will may be conditional upon the happening of a certain event, but language of condition is often construed merely to be a declaration of motive and not a condition (question of fact).
Courts will admit extrinsic evidence of:
(i) circumstances surrounding execution and
(ii) testator's subsequent acts to determine whether intent was conditional.

[For exam purposes, remember that a conditional codicil republishes a will as of the date of execution of the codicil even though the condition does not occur]
What functions are the Statute of Wills designed to perform?
Courts have often been very strict in requiring precise compliance with the Statute of Wills. The Statute of Wills is designed to perform three functions:
a. Ritual Function: to impress upon the testator that statements or acts are legally binding.
b. Evidentiary Function: to increase the reliability of proof of the testator's intention.
c. Protective Function: to safeguard the testator against undue influence, etc.
What is necessary for a Formal (attested) Will?
a. Subscription:
The testator must sign the will or direct another to sign for him in his presence.
~ A conservator may sign for a conservatee pursuant to court order.
~ A signature can be an informal name or the testator's initials.
~ Under California law, an attested will need not be signed at the end thereof.

b. Witness Must Witness the Signing or Acknowledgment of Signature or Will:
A will must be signed by at least two persons each of whom:
(i) being present at the same time, witnessed either the signing of the will or the testator's acknowledgment of his signature or of the will, and
(ii) understands that the instrument he signs is the testator's will.
~ Witnesses need not sign in the presence of each other.

~ The order of signing is unimportant as long as the will execution was a single, continuous transaction.
What are the Qualifications of Witnesses?
A witness must be competent at the time the will is executed.
~ In almost all states, a witness with a beneficial interest is competent to testify, but any provision in the will in his favor is purged.
- In California: unless there are at least two other disinterested subscribing witnesses, the fact that a will makes a devise to a subscribing interested witness creates a presumption that the witness procured the devise by duress, menace, fraud, or undue influence.
~ If the devise fails because a witness fails to rebut the presumption, then the witness gets such portion as does not exceed the share that would be distributed to him if the will were not established.
"[keep in mind that an interested witness is entitled to keep as much of the gift as he would have received if the will were not established only if he fails to rebut the presumption.
If it is shown that the witness actually procured the gift through duress, menace, fraud, or undue influence, he would not be entitled to any portion of the gift.
Is an attestation clause required?
Although not required, an attestation clause is useful in creating a rebuttable presumption that the will was duly executed.
What is a holographic will, are they permitted in CA?
Holographic wills are permitted in California if the signature and material provisions of the will are in the testator's own handwriting.
~ Provisions of an inconsistent will may govern unless evidence establishes that the holographic will was executed later in time.
~ Testamentary capacity and intent are required.

[Exam note: handwritten changes made by the testator to a holographic will after the will is completed are given affect.
~ By contrast, interlineations, changes in beneficiaries, amounts, etc., made after the execution of an attested will are not given effect, and in fact may work a revocation. it may be a valid holographic codicil, however]

~ California does not recognize oral (nuncupative) wills as valid.
What law controls the execution of the Will?
The law of the testator's domicile controls disposition of personal property; the law of situs controls the disposition of real property.
~ California Probate Code validates wills not made in California if executed in accordance with California law; the law of the state where executed; or the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national.
What is necessary to execute a California statutory will?
To execute a California statutory will:
(i) The testator must complete the appropriate blanks and sign the will; and
(ii) Each witness must observe the testator's signing and sign his name in the presence of the testator.

~ A California statutory will may be revoked or amended by codicil in the same manner as other wills.
~ If after executing a California statutory will, the testator's marriage is dissolved or annulled, any disposition of property made by will to the former spouse is automatically revoked.
What is necessary under the Uniform International Wills Act?
A will is valid in form, irrespective of the place where it is made, the location of assets, and the nationality, domicile, or residence of the testator, if it is made in the form of an international will complying with statutory requirements.
~ The will must be in writing, by hand, or other means.
~ The testator must declare in the presence of two witnesses and a person authorized to act in connection with international wills that the document is his will and that he knows the contents thereof, and the testator must sign the will in their presence.
~ An international will is subject to ordinary rules of revocation of wills.
Who may revoke?
Any Testator With Capacity May Revoke Will - A will can be revoked by the testator until death, even though he has contracted not to revoke.
What are the Methods of Revocation?
A will can be revoked only by methods permitted by law.
~ These methods include revocation by written instrument, by physical act, and by operation of law.
What is necessary for Express Revocation?
A will may be expressly revoked by a later will or codicil executed with the formalities required for a valid will.
An attested will may be revoked by holographic will and vice versa.
What is Implied Revocation?
A will may be revoked by implication from the terms of a subsequent instrument.
~ To the extent that the second will makes an inconsistent disposition of property, the terms of the prior will are necessarily superseded or nullified.
~ If there is only a partial inconsistency and both instruments are admitted to probate, the mention of a child in either will is sufficient to preclude the child from claiming as a pretermitted heir.
What is necessary for Revocation By Physical Act Performed on the Will?
The will must be burned, torn, canceled, obliterated, or destroyed with a simultaneous intent to revoke.
~ Where revocation is performed by another person, destruction must take place in the presence of the testator and at her direction.
Can a Will be Partially Revoked?
In California, a will can revoked in part as well as in whole by physical act.
~ Interlineation of a holograph constitutes both revocation of an altered provision and a valid new disposition.
~ The prior signature is adopted when the interlineation is made.
Effect of Revocation on other Testamentary Instruments
a. Physical destruction of one of two executed duplicate copies revokes the will.
b. Destruction of a codicil does not revoke a will, even if the testator so intends.
c. Destruction of a will revokes all codicils thereto written on separate pieces of paper, unless the testator does not so intend.
d. Where the will and codicil are written on the same piece of paper, defacing the will portion revokes the codicil, but defacing the codicil portion does not revoke the will, unless the testator so intends.
Revocation By Physical Act Performed on the Will - Sufficiency of the Act
a. Burning- the slightest singeing is sufficient; the part burned need not be material.
b. Tearing: most courts require the tearing to touch some material part of the paper of the physical will.
c. Obliteration- to revoke, an obliteration must affect some material part of the will.
d. Cancellation: Cancellation means drawing lines through words of the will.
~ Writing ""VOID"" on the margin is not a cancellation.
~ Defacing the signature revokes the entire will (unless there was no intent to revoke).
When must the Intent to revoke occur?
The intent to revoke must be concurrent with the physical act.

[Exam Note: watch for a fact situation on the exam in which the will is destroyed either before or after the testator forms the requisite intent. A change of mind after the testator commits the act with intent to revoke does not reinstate the will. Similarly, if the testator forms an intent to revoke after accidentally destroying the will, the will is not revoked]
What if the Will is Not Found At Death?
If the testator was competent until death, the will was last known to be in the testator's possession, and neither the will nor a duplicate is found at the testator's death, it is presumed that the testator destroyed the will with intent to revoke.
Can a Testator increase a gift by Physical Act?
By canceling words in a will, the testator cannot increase a gift to a beneficiary (although a resulting increase in the residuary gift is allowed); the testator can only decrease a gift to a beneficiary by this method.
Where a will is lost or destroyed without being revoked, is the will is admissible to probate?
Where a will is lost or destroyed without being revoked, the will is admissible to probate on adequate proof of its contents in the absence of any statute to the contrary.
~ Some states have statutes limiting or prohibiting the probate of lost or destroyed wills, the effect of which may be to deny probate to unrevoked wills.
What protection is afforded a spouse in a subsequent marriage?
California's pretermitted heir statutes protect a surviving spouse from being unintentionally omitted from a deceased spouse's will.
What is the result If a testator marries after making a will, the spouse survives the testator, and the spouse is not provided for in the will?
If a testator marries after making a will, the spouse survives the testator, and the spouse is not provided for in the will, the surviving spouse may take, in addition to his share of community and quasi-community property, his intestate share of the estate.
~ The spouse's intestate share of separate property may not exceed one-half the value of the separate property in the estate.
When does a surviving spouse not receive his intestate share?
A surviving spouse does not receive his intestate share if:
(i) the testator's failure to provide for the spouse in the will was intentional and that intention appears from the will;
(ii) the testator provided for the spouse by a transfer outside the will and the intention that the transfer be in lieu of a testamentary provision is shown by statements of the testator, the amount of the transfer, or by other evidence; or
(iii) the spouse made a valid agreement waiving his right to share in the testator's estate.
How is a Spouse's share satisfied?
A surviving spouse's intestate share is first taken from that portion of the estate not disposed of by will, if any.
~ If that is not sufficient, so much as may be necessary to satisfy the share will be taken from all devisees in proportion to the value they may respectively receive under the will.

For decedent dying on or after January 1, 1998, a surviving spouse who was unintentionally omitted from a decedent's ""testamentary instruments,"" which include the deceased spouse's will or revocable trust, may take their intestate share.
~ Under the amended law, to satisfy a spouse's share, the share will first be taken from decedent's estate not passing by will or trust, then from all beneficiaries of the decedent's testamentary instruments pro rata.
~ For decedents dying before January 1, 1998, the above provisions still apply."
(i) the old version, pre 1998, focused only on the will as means of making a testamentary transfer; new version recognizes revocable trusts; and (ii) Post Jan. 1, 1998 the share will first be taken from decedent's estate not passing by will or trust, then from all beneficiaries of decedent's instruments pro rata.
What result with a Dissolution or Annulment of Marriage?
Unless the will expressly provides otherwise, if after executing the will, the testator's marriage is dissolved or annulled, any disposition of property made by the will to the former spouse, any provision of the will conferring a power of appointment on the former spouse, and any provision nominating the former spouse as executor, trustee, conservator, or guardian is revoked.
~ A decreee of legal separation, which does not terminate the status of husband and wife, is not a dissolution.
~ Property prevented from passing to a former spouse because of revocation passes as if the former spouse failed to survive the testator.
What is the Doctrine of Dependent Relative Revocation?
The doctrine of dependent relative revocation ("DRR") applies when testator revokes his will upon the mistaken belief that another disposition of the property is effective, and but for this mistake, he would not have revoked the will.

In California: DRR applies to revocations by physical act and subsequent instrument (even if it contains an express revocation clause).
~ If the other disposition fails, the revocation is set aside, and the original will remains in force.

Exam Note: remember, for Dependent Relative Revocation to apply,
(i) there must be an alternative disposition,
(ii) the alternative disposition must be ineffective,
(iii) if the revocation is by subsequent instrument, extrinsic evidence is not admissible to show the mistake]
Does CA allow for Revival of Revoked Wills?
Will-1 is executed. Then Will-2 is executed, revoking Will-1. Will-2 is then revoked. Is Will-1 revived?
California: has adopted the substance of the Uniform Probate Code.
If Will-2 is revoked by physical act, extrinsic evidence can prove the testator's intent to revive Will-1.

If Will-2 was revoked by a later will (Will-3), Will-1 is not revived except to the extent it appears from the terms of Will-3 that the testator intended Will-1 to take effect; extrinsic evidence cannot be used to prove the testator's intent to revive Will-1.
What is the Doctrine of Integration?
All papers actually present at execution are integrated into the will if the testator intended the papers to be a single will.
~ The intent of the testator to integrate several sheets is shown by a physical or internal-sense connection.
What is a Codicil?
A codicil is a testamentary instrument modifying an earlier will and must be executed with the same formalities as a will.
[for questions involving alterations on the face of an attested will, remember that any addition, alteration, interlineation, or deletion made after the will has been signed and attested is ineffective unless the will is reexecuted with proper formalities or the changes qualify as a holographic codicil].
Because a codicil is executed with the formalities of a will, it can be admitted to probate by itself (without a will).
~ Thus, if for some reason the will cannot be admitted, a properly executed codicil is admitted as a will.
What is Republication by Codicil?
A codicil republishes a will so that the will is deemed to be reexecuted at the time of the codicil.
~ Republication may thus cause the will to be interpreted as if the will were executed at date of the codicil.
~ Republication is flexibly applied to carry out the testator's probable intent.
~ thus, for example, a child born after a will but before a codicil is not considered an afterborn child for purposes of the pretermitted child statute.
What is Incorporation by Reference?
Any separate document may be incorporated into the will by reference if the document is in existence at the date of the will, clearly described in the will, and proven to be the document described in the will.
~ Holographic wills can incorporate printed or typed material.
~ The doctrines of integration and incorporaton by reference sometimes apply to the same facts, sometimes with opposite results.

[Exam Note: keep in mind that a properly executed codicil usually incorporates by reference a prior defective will, thereby validating that instrument]
What are Acts of Independent Significance?
"Blanks" in a will can be filled in by referring to acts or documents executed during the testator's life primarily for nontestamentary motives.
~ Either beneficiaries or property can thus be identified.

The critical issue is whether the act or document has a sufficient significance apart from its impact on the will; (e.g., a gift of "$1,000 to each person employed by me at the time of my death" has independent significance.)
In California, the acts may occur before or after execution of the will or before or after the testator's death.
~ The execution or revocation of the will of another person is an act of independent significance.

The doctrine of independent significance also applies to acts of third persons; e.g., testator can provide that his property pass under the last will of another person, alive at the time of execution.
~ If the person survives the testator, he has a testamentary power of appointment, if the other person predeceases the testator, his will has independent significance.
May a testator by will bequeath estate assets to an inter vivos trust ?
A testator may by will bequeath estate assets to an inter vivos trust (as amended at the testator's death) provided that the trust is identified in the will and its terms are set forth in a written instrument executed before or currently with the execution of the testator's will.
~ The trust may be revocable or amendable.
What result with Joint Interests, e.g. a JT?
A surviving joint tenant takes the whole property by operation of law without going through probate.
Is a Life Insurance policy a Probate Asset?
The terms of the policy (which is deemed to be a contract) control. The policy is not a probate asset.
Is A Deed given to a Grantee effective as a Will substitute?
A deed is effective if delivered during the grantor's lifetime even though the grantor reserves a life estate. Oral conditions are void.
If conditions are written, the following conditions should be valid on policy grounds:
"(i) that the grantee must survive the grantor;
(ii) that the deed is not to take effect until grantor's death; and
(iii) that the deed is revocable by the grantor.
Is A deed delivered to an escrow agent with oral instructions to deliver the deed to the grantee on the grantor's death valid?
Yes - A deed delivered to an escrow agent with oral instructions to deliver the deed to the grantee on the grantor's death is valid.

a. Exception - Revocable Escrow:
If the escrow is revocable and the grantor can get the deed back, the escrow fails.

b. Exception: Survivorship of Grantee:
If the escrow agent is directed to return the deed to the grantor if the grantee dies first, the escrow fails because no interest passed.

3. Bar Exam Approach:
State the doctrinal issue, "Did grantor intend to create a present interest?"; then discuss the ritual and evidentiary policies of the Statute of Frauds (for lifetime transfers) and the Statute of Wills (for testamentary transfers).
Are Inter Vivos Revocable Trusts valid as a will substitute?
An inter vivos trust, revocable by the settlor, is valid.
~ In California, a trust is valid even if the settlor is the sole trustee and sole beneficiary during the settlor's lifetime, as long as the trust provides for successor beneficiaries following the settlor's death.
1. Government Bonds
2. Bank Arrangements
3. Contracts
A "payable on death" ("POD") designaton on a United States bond is valid.

Savings account trusts, also know as Totten trusts, are valid, even though the trustee (depositor) can withdraw all the proceeds for his own use.

Under a joint or survivor account, the survivor has an absolute right to all the money.
~ However, extrinsic evidence may be admitted to show the account was merely for convenience and the decedent did not intend for the survivor to take all the money.

Payable on Death Designations - A POD designation on a bank account has often been held invalid as a testamentary disposition, but it is distinguishable from a Totten trust only by the fact that the depositor did not say he held the proceeds "in trust."

California - Multiple-Party Accounts are not Testamentary: Multiple-party accounts in credit unions and industrial loan companies are effective and not considered testamentary, and the rights of the beneficiary, survivor, or POD payee are not to be denied because Statute of Wills formalities were not followed.

Pension Plan Designations: A designation of a beneficiary under a pension plan is valid.

Securities in Beneficiary Form: An owner of a security may register it in beneficiary form (e.g., POD or TOD ("transfer on death")) so that on the death of the owner, the security will be transferred to the designated beneficiary without probate or estate administration.
How does CA law treat written instruments/will substitutes?
A party to a written instrument that is effective as a gift, trust, conveyance, or contract may specify that on the party's death, a designated person will receive money, benefits, or property that is the subject of the instrument or is controlled by the party.
~ This designation is effective under California law and is not considered testamentary.
What law controls contracts to make wills?
Contracts to make, not to make, or not to revoke, wills are controlled by contract law, not the law of wills.

Effect:
If the contract concerning a will is broken, an action for damages against the testator's estate or to impose a constructive trust on the testator's beneficiaries may lie, but any duly executed will must be probated.
What are the formalities for contracts to make wills in CA?
In California, contracts to make wills must be in writing (or the basis for an estoppel must exist).

Proof of Contract:
A contract to make or not to revoke a will, devise, or other instrument, or to die intestate, if made after December 31, 2000, can be established only by one of the following:
"(i) provisions of a will or other instrument stating the material provisions of the contract;
(ii) express reference in a will or testamentary instrument to a contract;
(iii) writing signed by the decedent evidencing the contract;
(iv) clear and convincing evidence of an agreement or promise between the decedent and the claimant; or
(v) clear and convincing evidence of an agreement or promise between the decedent and another person for the claimant's benefit."
~ The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.
What are Joint and Reciprocal Wills?
A joint will is the will of two or more persons executed with the intent to serve as the will of each joint testator.
~ A joint will is admitted to probate on the death of each joint testator.
~ Reciprocal wills are separate wills that contain similar or reciprocal provisions.

Oral Contracts:
Where contracts to make or not revoke a will are required to be in writing, as in California, courts have invented ways around the Statute of Frauds, for example:
a. The wills themselves constitute sufficient memoranda (in California, execution of a joint will or mutual wills does not create a presumption that there is a contract not to revoke the will or wills); or
b. Admission to probate on the death of the first contracting party constitutes part performance; or
c. The promisor may be estopped to plead the Statute after he accepts benefits under the first decedent's will.
Can a Joint Testator revoke?
Any joint testator can revoke the will for himself but not for others. Such revocation may give rise to a breach of contract action.
What are the Remedies for Breach when the First Party Dies in Compliance?
A and B contract not to revoke their wills. A dies with his will in compliance. B executes a new will in violation of the contract.

a. Constructive Trust after Survivor's Death: After B dies, the new will must be probated.
~ The remedy of contractual beneficiaries is a suit to impose a constructive trust on the will beneficiaries.

b. Wrongful Inter Vivos Transfer: Before B dies, the contractual beneficiaries can set aside B's inter vivos transfers in fraud of the contract.

c. Revocation without Inter Vivos Transfer:
The contractual beneficiaries cannot bring an action against B during his lifetime for revoking his will because they have not yet been damaged.
What about Remedies for Breach when First Party Dies in Breach?
A and B contract not to revoke their wills. A dies, having revoked his will. Does B have a remedy? Most courts hold that B does not, on the theory that he has not been damaged (contrary to ordinary contract principles).
What is the Surviving Spouse's Waiver of Rights?
A spouse may excecute a waiver of the right to receive property or benefits from the other spouse's estate.
~ These rights may be waived before or during the marriage.
What is necessary for the Enforceability of a Spouse's Waiver of Rights?
A waiver must be in writing and signed by the surviving (waiving) spouse.
~ Also, the spouse benefiting from the waiver generally must disclose his financial status to the spouse executing the waiver, and the waiving spouse must have independent legal counsel.
~ A waiver will not be enforced if it is unconscionable.

2. Defenses to Enforcement of Waiver:
Enforcement of a waiver against the surviving spouse is subject to the same defenses as enforcement of a contract, except that:
(i) lack of consideration is not a defense to enforcement of a waiver, and
(ii) a minor intending to marry may make a waiver, but the waiver becomes effective only upon marriage.

3. Agreement Altering, Amending, or Revoking Waiver:
Unless the waiver specifically provides otherwise, a waiver may not be altered, amended, or revoked except by a subsequent written agreement signed by each spouse or prospective spouse.
Do the statutory waiver requirements limit the right to revoke a consent or the election to dispose of his half of community property or quasi-community property under the will of the other spouse?
No. The statutory waiver requirements do not limit the right of one spouse to revoke a consent or the election to dispose of his half of community property or quasi-community property under the will of the other spouse.
What is CP?
Community property is earnings and acquisitions from earnings of both spouses earned or acquired during marriage, while domiciled in California.
What is the decedent's testamentary power with respect to CP?
At the death of one spouse, one-half of the community property is already owned by the surviving spouse.
~ Only the decedent's half is subject to testamentary disposition (unless the spouses agreed in writing to a non-pro rata division of the community property).
What is the Widow's Election?
The testator may require the surviving spouse to give up his half of community property in exchange for benefits under the will.
~ Courts construe ambiguous language against requiring the widow to give up her half of the community property.
~ A surviving spouse may also be required to elect between taking under the decedent's will (which disposes of both spouses' shares of quasi-community property) or taking the surviving spouse's one-half share.
What is the Quasi-CP concept?
California has enacted a statute to protect spouses who move from a common law state to a community property state (California).

California probate code provides for a forced share of one-half of the decedent's "quasi-community property."
(all personal property wherever situated and all California real property acquired by the decedent while domiciled elsewhere that would have been CP had the decedent been domiciled in California at the time of acquisition).
How is Quasi-CP distinguished from Actual CP?
The difference is that W does not own an undivided one-half interest in H's QCP during H's life and has no power of testamentary disposition if she dies first.
~ The same rules apply to H with respect to W's quasi-community property.
Can the surviving spouse set aside transfers during marriage of QCP?
Yes. This is a situation where there's been an Inter Vivos Transfers to Defeat the Spouse's Forced Share:
In California, the surviving spouse can set aside transfers during marriage of QCP to the extent of one-half if the transferee retains property or, if not, one-half of its proceeds or, if none, one-half of its value at the time of transfer, if all of the following requirements are satisfied:
1) the decedent is domiciled in California;
2) the decedent made a transfer of property to a person other than the surviving spouse without receiving in exchange a consideration of substantial value and without written consent or joinder of the surviving spouse; AND
3) the transfer is such that:
(i) the decedent retained at the time of death possession or enjoyment of, or rights to income from, the property;
(ii) the decedent retained at the time of death a power to revoke or consume, invade, or dispose of principal for the decedent's own benefit; or
(iii) the property is held at the time of the decedent's death by the decedent and another with right of survivorship.
What is the Effect of A Forced Share Election by the Surviving Spouse?
When the surviving spouse elects a forced share, he must renounce all benefits under the will.
Again, what is QCP?
all personal property wherever situated and all California real property acquired by the decedent while domiciled elsewhere that would have been CP had the decedent been domiciled in California at the time of acquisition
Where does the forced share come from?
When the surviving spouse elects a forced share, the share is generally taken from the beneficiaries either by ordinary rules of abatement (residuary first, then general, then specific gifts).

The interests renounced are sequestered to reduce, insofar as possible, the loss of those who have suffered by the election. Sequestration will not be applied if it will work inequitably or if it would be contrary to the Testator's intent.
What does a pretermitted heir statute do?
California's pretermitted heir statute protects the testator's children who were born or adopted after the execution of a will.

[remember that republication of a will by codicil can result in a change in a child's status with respect to pretermission.
~ A child born before the republication is not considered pretermitted and is not entitled to the protection of the statute]
What does CA's pretermitted heir statute provide for?
(Note that the statute was amended to include all testamentary instruments)
For decedent's dying on or after January 1, 1998, a child who was unintentionally omitted from a decedent's "testamentary instruments," which include the decedent's will or revocable trust, may take an intestate share.
~ Under the amended law, to satisfy a child's share, the share will first be taken from the decedent's estate not passing by will or trust, then from all beneficiaries of the decedent's testamentary instruments pro rata.
~ For decedents dying before January 1, 1998, the above provisions still apply. (a share in the estate he would have received if the testator had died intestate).
Under the amended law, how is a child's share satisfied?
Under the amended law, to satisfy a child's share, the share will first be taken from the decedent's estate not passing by will or trust, then from all beneficiaries of the decedent's testamentary instruments pro rata.
What is necessary for Testamentary capacity in CA?
1. Age - Must be Eighteen
2. Mental Capacity:
A testator must be able to communicate his wishes and understand the nature of the disposition he is making and its effects.
Hos is lack of capacity proved?
a. Proving Lack of Capacity:
To prove that a testator lacked capacity at the time he executed his will, the challenger must produce evidence of a deficit in at least one of the following:
(i) alertness and attention;
(ii) ability to process info (e.g., memory, ability to understand);
(iii) thought processes (e.g., presence or absence of hallucinations or delusions); and
(iv) ability to modulate (regulate or temper) mood.
~ Such a deficit may be considered only if it, alone or in combination with other such deficits, significantly impairs the person's ability to understand and appreciate the consequences of his actions with respect to the will.
What is the Effect of Contractual Capacity and Adjudicated Incompetency?
Proof of capacity to conduct ordinary business is important evidence of testamentary capacity.
~ A person adjudicated incompetent may still have testamentary capacity.
What is an insane delusion?
A person with testamentary capacity may have an "insane delusion" that can invalidate an entire will or a portion thereof.
~ A delusion is a conception of reality that has no foundation in reality.
~ An insane delusion is a delusion to which the testator adheres when a rational person in his situation could not have drawn the conclusion reached by the testator.
~ A will can be set aside for an insane delusion only if the delusion caused the disposition.
Who is the Burden of Proof as to Mental Capacity on?
The burden of proving mental capacity or insane delusion is on the will contestant.
What is Undue Influence?
Undue influence is mental or physical coercion that deprives the testator of his free will, causing him to substitute another person's desire for that of his own. Undue influence requires that:
(i) the testator be susceptible to influence;
(ii) the other person have an opportunity to influence;
(iii) the other person be disposed to influence; and
(iv) the provisions of the will be unnatural.
~ The will may fail in whole or in part because of undue influence.
[remember, the free will of the testator must be destroyed]
When does a presumption of undue influence arise?
A presumption of undue influence arises if:
(i) the beneficiary was in a confidential relationship with the testator;
(ii) the beneficiary participated in execution of the will; and
(iii) the provisions appear unnatural.
When a presumption of undue influence arises, the beneficiary has the burden of proof.
For Undue Influence purposes, what are confidential relationships?
A "confidential relationship" includes the attorney-client and doctor-patient relationships.
~ Although the husband-wife relationship is considered confidential for some purposes, a gift to a spouse does not raise a presumption of undue influence.
What are the CA limitations on transfers to the Will Drafter?
By statute, Calfornia holds invalid any will provision making a donative transfer to:
(i) the person who drafted the will;
(ii) a person related to, living with, or employed by the drafter;
(iii) a partner or shareholder of a law partnership or law corp. in which the drafter has an ownership interest, as well as any employee of that partnership or corporation;
(iv) any person who has a fiduciary relationship with the Testator who transcribes the will;
(v) any person who is related to, lives with, or is employed by a person who is referred to in (iv); or
(vi) a care custodian of a dependent adult.
What are the exceptions to the CA limitations on transfers to the Will Drafter?
A will provision in favor of the drafter is valid if the testator is related to or lives with the drafter, or if the will is reviewed by an independent lawyer.
With limitations on transfers to the Will Drafter, how can the Transferee overcome the rebuttable presumption of invalidity?
The transferee may establish by clear and convincing evidence that the transfer was not the product of fraud, menace, duress, or undue influence.
With Statutory Limitations on Transfers to the Drafter, what is the effect on the person disqualified?
A person disqualified under this provision is deemed to have predeceased the Testator without spouse or issue, but only to the extent the transfer exceeds the person's intestate interest.
What is necessary for Fraud relating to the Will?
Fraud requires that the testator be willfully deceived.
~ Generally, the fraud must be intended to influence the execution or content of a will, but the deceit directed at another objective may influence the will and cause it to fail.
~ For a gift to fail because of fraud, the Testator must have in fact been deceived by and acted in reliance on the fraud.
~ Any gift resulting from fraud is invalid.

~ Generally, to affect the will, fraud must be perpetrated by a beneficiary, and only that beneficiary's interest is invalidated.
What are the two classifications of fraud relating to a Will?
Fraud may be classified as:
(i) fraud in the execution - misrepresentation as to the nature or contents of an instrument; or
(ii) fraud in the inducement - misrepresentation of facts that influence the testator's motivation.
What result where a person is fraudulently prevented from making a will?
Where a person is fraudulently prevented from making a will, the court may impose a constructive trust on the heirs, even innocent heirs. Some courts will not grant relief.
What are remedies for Fraud relating to Will execution?
The denial of probate of tainted portions of the will and constructive trust are remedies for fraud.
What is Mistake in the Execution relating to a Will?
Where a Testator executes the wrong document, the executed document is not admissible to probate because testamentary intent was lacking as to that instrument.
~ However, where a provision in the will has been included by mistake, some courts admit the will without the provision.
~ It is not clear, however, whether the whole provision must be struck from the will or only the mistaken words in the provision.
What is Mistake in the Inducement relating to a will?
A mistake in the inducement exists where testator is mistaken as to facts which cause him to draw up and execute the will that he does, where he intends to execute the very instrument that he did, but where he would not have executed such a will with full knowledge of the facts. The rule upon this subject is that a will is valid, even though made by reason of a mistake of fact.

There is no relief for mistake in the inducement unless both the mistake and the disposition the Testator would have made but for the mistake appear on the face of the will.
What is the exception relating to mistake in the inducement relating to Will execution?
If at time of execution of the will the testator fails to provide in the will for a living child solely because the testator believes the child to be dead or is unaware of the birth of the child, the child will receive a share in the estate equal in value to that which the child would have received if the testator had died intestate.
i.e., T mistakenly thinks child dead, child gets intestate share
What is the effect of Mistake in the Inducement relating to a Will?
Where only a portion of the will is invalid by reason of mistake, the remainder of the will is valid unless enforcement would grossly distort the testator's intent.
How does CA treat ambiguities relating to a will?
California has rejected the distinction between patent and latent ambiguities; extrinsic evidence is admissible to explain any ambiguity.
~ Thus, extrinsic evidence of the circumstances under which the will was made is admissible to show what the testator meant by the words used.
~ Evidence is not admissible, however, to show that a will provision means something to which the words are not reasonably susceptible.
What kinds of Evidence are available to explain ambiguities?
Once extrinsic evidence is admissible, most relevant evidence will be admitted.
~ For example, most courts admit the testator's oral declarations at or about the time of execution of the will.
~ There is less agreement as to the admissibility of the testator's declarations made significantly after execution.
Does a mistaken description of property or of a person render the instrument inoperative?
A mistaken description of property or of a person does not render the instrument inoperative, provided the mistaken description can be excised (removed) from the will.
Can extrinsic evidence be used to show mistake?
Mistakes as to the legal effect of provisions cannot be corrected by a court.
~ But courts may treat mistakes relating to the legal significance of words (particularly those made by illiterate or laypersons) as ambiguities.
What are the three views as to a slayer's right to inherit from the victim?
(i) legal title goes to the slayer outright;
(ii) a slayer may not inherit because no one should profit from his own wrong;
(iii) the slayer inherits but the court imposes a constructive trust to prevent unjust enrichment
(CA follows (iii) when its slayer statute is inapplicable.)
What are the Statutory Restrictions on a person who feloniously and intentionally kills the decedent?
A person who feloniously and intentionally kills the decedent is not entitled to: any property or benefit under the will; any property under the intestate succession statute or the statutory provisions for protection of the decedent's family; any property covered by the statutory provision relating to gifts in view of impending death; or any of the decedent's quasi-community property that the killer would otherwise acquire on the decedent's death.

~ If a slayer is deprived of a decedent's property, it goes to other persons entitled to thereto under the will or succession statute.
What if there is a Murder of One Joint Tenant by Another Joint Tenant?
There is severance: If a joint tenant feloniously and intentionally kills another joint tenant, the decedent's share passes as the decedent's property and the killer has no rights of survivorship.
What about a named beneficiary who feloniously and intentionally kills the principal obligee or person upon whose life the policy is issued?
A named beneficiary who feloniously and intentionally kills the principal obligee or person upon whose life the policy is issued is not entitled to any benefit and thus proceeds become payable as though the killer had predeceased the decedent.

~ Any person who, before rights to the decedent's property have been adjudicated with respect to the killer's interest, purchases from the killer for value and without notice may retain the property.
~ But the killer is liable for the amount of the proceeds or the value of the property.
Wrongful Death Actions
A person who feloniously and intentionally kills the decedent is not entitled to bring an action for the decedent's wrongful death or to benefit from any such action.
~ The persons who may bring and/or benefit from this type of action are determined as though the slayer predeceased the decedent.
What result if a person has committed abuse or neglect elder or dependent adults?
Any person who has committed physical abuse, neglect, or fiduciary abuse of an elder or dependent adult is prevented from receiving property from the victim's estate. The person who committed the abuse or neglect is deemed to have predeceased the decedent if:
(i) the abuse or neglect is proven by clear and convincing evidence;
(ii) the person acted in bad faith;
(iii) the person acted recklessly, oppressively, fraudulently, or maliciously; and
(iv) the decedent was substantially unable to manage her financial resources or to resist fraud or undue influence.
What is Probate?
Probate is the process by which the will is judicially established as valid or where the decedent's heirs are judicially determined. The primary place of administration is in the county of the state of domicile at the time of death. If a will is admitted to probate at the domicile, this is generally treated as conclusive in other states for purposes of disposing of personal property.

~ Bona fide purchasers from heirs or beneficiaries are protected if letters of administrtion or letters testamentary are granted, even though another will is subsequently admitted to probate.
Who may contest a will in CA?
In California, a will may be contested within 120 days after admission to probate.
1. Only Directly Interested Persons May Contest Will:
A person can contest a will only if she has a direct interest and will benefit economically if the will is set aside.
a. A pretermitted child, or person given a forced share, cannot contest because her rights are the same regardless of probate.
b. Beneficiaries under prior wills can contest a subsequent will.
c. It is questionable whether an executor under a prior will can contest a subsequent will.
d. The judgment creditor of a beneficiary of a prior will might be entitled to contest a subsequent will.
e. The spouse of a beneficiary under a prior will or the prospective heir of an heir of the decedent cannot contest.
What is a No-Contest Clause?
A no-contest clause states that any contestant will lose her rights under the will. Generally, a no-contest clause is enforceable, although it will be strictly construed.

~ Actions that generally do not constitute a contest are:
(i) filing of a creditor's claim;
(ii) an action to determine the character of property;
(iii) a challenge to the validity of an instrument, contract, agreement, beneficiary designation, or other document; or
(iv) a petition for settlement or for compromise affecting the terms of the instrument containing the clause.

Public Policy Exceptions to Proscriptions of Clause: the following proceedings never violate a no-contest clause:
(i) petition seeking modification or termination of a trust;
(ii) a petition regarding conservatorship;
(iii) a petition regarding powers of attorney;
(iv) a petition seeking annulment of a marriage of the person who executed the instrument containing the no-contest clause;
(v) a petition seeking authorization or instructions regarding actions of a guardian or conservator;
(vi) a petition challenging the exercise of fiduciary power;
(vii) a petition objecting to appointment, or seeking removal, of a fiduciary; or
(viii) objections or other responsive pleadings to a fiduciary's accounting.
What is the purpose of estate administration?
The purposes of administration are to collect the decedent's assets, determine and pay claims, and distribute the balance of the estate to the beneficiaries.

An "executor" is named in a valid will or codicil.
~ In California, nonresidents can serve as executors. One cannot serve as executor if:
(i) under the age of majority;
(ii) incapable of executing the duties of the office;
(iii) subject to removal from office for waste, wrongful neglect of the estate, or the like;
(iv) not a United States resident; or
(v) a surviving partner of the decedent and an interested person objects to the appointment.
~ The last two provisions do not apply to an executor named in the will.
~ An "administrator" is a person who administers a testate estate but is not named in the will.
~ The spouse and relatives are given priority in appointment as administrator.
What is a devise?
"Devise" refers to a gift of land or interest in land; "bequest" to gift of personal property; "legacy" is synonymous with "bequest."
~ In California, "devise" is used to mean any disposition of real or personal property by will.
What is a Specific Legacy or Devise?
A specific legacy or devise is a gift of a particular object distinct from all other objects in the testator's estate, e.g., "my three-carat diamond ring."
What is a General Legacy or Devise?
A general legacy or devise is a gift of a general economic benefit, payable out of the general assets of the estate.
Ex. a gift of 100 shares of GM stock
What is a Demonstrative Legacy?
A demonstrative legacy is a general legacy payable first from particular property and then out of the estate if that property is insufficient, e.g., "$1,000 to A payable from the sale of GM stock."
What is a Residuary Gift?
A residuary gift is what remains after paying debts and specific, general, and demonstrative gifts.
What is Ademption?
Ademption applies only to specific gifts.
~ A specific gift is adeemed when the item is not part of the Testator's estate at death (gone).
What is the Rule in CA as to Ademption?
In a minority of states and in California, ademption depends on the Testator's intent at the time he disposes of the item during his life.

~ Under the majority rule, the testator's intent is irrelevant if there has been complete extinction of the property.
What are the rights of Specific Devisees re the remaining property and transferred property?
A specific devisee has a right to the remaining specifically devised property, as well as the balance owed on a purchase price or eminent domain award, unpaid insurance proceeds, and property from foreclosure.

If the testator, after execution of the will, enters into an agreement for the sale or transfer of specifically devised property, the devisee has the right to the property subject to the remedies of the purchaser or transferee.
Escape Devices to Avoid Ademption.
Escape devices to avoid ademption include:
(i) classifying the gift as general or demonstrative rather than specific;
(ii) classifying an inter vivos disposition as a change in form, not substance;
(iii) construing the will as of the time of death; and
(iv) creating exceptions, such as no ademption where the testator and property are simultaneously destroyed, and the guardian of an incompetent person cannot adeem by transferring away the item.
When is a general or demonstrative gift satisfied during the T's life?
A general or demonstrative gift is satisfied if the Testator transfers property to the beneficiary, subsequent to execution of the testamentary instrument, with the intention of satisfying the gift.
A specific gift can also be satisfied by the transfer to the beneficiary of the specific item (in which case it is adeemed).
~ The difficult problem is determining the Testator's intent.

In California, there is no satisfaction unless the testator's intent is expressed in a contemporaneous writing signed by either the testator or the donee.
What is Abatement?
Gifts by will are reduced (abated) when the estate is not sufficient to pay all debts and legacies.
What is the Order of Abatement?
~ If the Testator indicates an order of abatement, her wishes control.
~ If the testator is silent, gifts abate in the following order:
(i) intestate property;
(ii) residuary gifts;
(iii) general gifts to persons other than the testator's relatives;
(iv) general gifts to the testator's relatives;
(v) specific gifts to persons other than the testator's relatives;
(vi) specific gifts to the testator's relatives.

ET: to the extent they can be satisfied from the designated source, demonstrative legacies are treated as specific legacies for abatement purposes. To the extent the fund is insufficient, demonstrative legacies are treated as general legacies for abatement purposes.
With an increase during the T's lifetime, with stock splits and stock dividends, is a Specific Legatee entitled to the increase?
Since stock splits and stock dividends are the result of actions initiated by the entity, a specific legatee of the stock is entitled to the additional shares.
~ A general legatee is not entitled to any increase.
What controls who takes interest and profits after the testator's death?
The classification of the gift controls who takes the interest and profits after the testator's death.

A specific gift carries with it the right to all its income earned after the testator's death.
1) Interest on bonds accrues day by day.
2) Dividends on stock are payable to the owner of the stock on the record date.
3) Rent becoming due after the T's death goes to the devisee.

~ A general legacy bears interest at a rate calculated by a statutory formula beginning one year after the testator's death.

~ Residuary gifts do not bear interest; all income not payable to the specific or general legatees becomes part of residue.
What is Exoneration?
~ In California, a specific devise of realty or personalty passes the property devised subject to any lien existing on the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.

Under common law rules, a devisee of land or a legatee who receives specifically bequeathed personalty takes the property free and clear of any lien or encumbrance; other beneficiaries (usually residuary legatees) pay the obligation.

~ When the will requires that an encumbrance on specifically bequeathed property be exonerated, other specifically bequeathed property does not abate for the purpose of exoneration unless otherwise indicated by the will.
What is Lapse?
When a beneficiary dies after the Testator executes his will but before the Testator dies, the gift to the beneficiary lapses (fails).
~ If the beneficiary is dead at the time the will is executed, the gift is void, with the same consequences as lapsed gifts.
~ A gift to a beneficiary who fails to survive the Testator until any future time required by the will also lapses.
What is the Consequence of Lapsed Gifts?
If there is an alternative gift (to someone else), such gift takes effect.
~ If there is no alternative gift to someone else, then specific, general, and demonstrative lapsed gifts fall into the residue.
~ A lapsed residuary gift goes to the testator's heirs.
Who divides a Gift to a Class?
Where there is a gift to a class, only the members of the class who survive the testator divide the gift.
~ It is sometimes difficult to determine whether a gift is to a class; a class designation such as "children" is an important indicator as is the testator's intent that the number of beneficiaries fluctuate between the time he executed the will and his death.
~ Even if the testator does not use a class designation, the court may find a class gift because the testator was "group-minded." A gift of exact shares is not a class gift.

If a class gift is made by a will, unless the will states a contrary intention, half bloods, adopted persons, nonmarital persons, stepchildren, foster children, and the issue of all such persons (if appropriate to the class) are included in the class gift if they would have inheritance rights under laws of intestate succession.
Does CA have an Anti-Lapse statute. Who does it apply to?
Yes. Briefly, Devisee has to be related to T or T's spouse. In California: the anti-lapse statute applies only if the devisee who predeceased the Testator was kindred of the Testator or kindred of a surviving, deceased, or former spouse of the testator.

~ Issue of a deceased devisee take in his place.
Does CA Anti-lapse statute apply to class gifts?
~ The anti-lapse statute applies to class gifts but does not apply if the will expresses a contrary intention or a substitute disposition.
How about a residuary gift to two or more persons?
In California, if the residue is devised to two or more persons, and a residuary legatee predeceases the testator, his share passes to the residuary legatees who survive the testator in proportion to their interests.
~ However, the anti-lapse statute will substitute the deceased devisee's descendants if it applies.
How about a Future Interest Devised to Two or More Persons?
In California, if a future interest is devised to two or more persons and a share fails for any reason, that share passes to the other devisees in proportion to their interests.
~ However, if it applies, the anti-lapse statute will substitute the deceased devisee's descendants.