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96 Cards in this Set
- Front
- Back
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What are the four elements of capacity that a testator must satisfy at time of making will? |
1. 18 years of age 2. Understand extent of property 3. Know natural objects of her bounty 4. Must know nature of making will, if not specifics |
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What are the natural objects of one's bounty? |
1. Spouse / domestic partner 2. Issue 3. Parents 4. Those with interests affected by will |
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What is an "insane delusion"? |
At time of execution, 1. Testator had false belief 2. False belief was product of sick mind 3. Not even scintilla of evidence to support belief 4. Delusion affected testator's will |
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What are the five elements to fraud? |
1. Representation 2. Of material fact 3. Known to be false 4. For purpose of inducing action 5. In fact induces action |
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What are the three types of fraud? |
1. Fraud in execution 2. Fraud in inducement 3. Fraud in preventing testator from revoking will |
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What is the consequence of fraud in execution? |
Entire will is invalid |
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What is the consequence of fraud in inducement? |
That affected part is invalid |
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What are remedies for fraud in inducement? |
1. Give to residue; or 2. If no residue, give to heirs at law; or 3. Constructive trust |
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What are the three types of undue influence? |
1. Prima Facie Case 2. Case law presumption 3. Statutory presumption |
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What is the prima facie case for undue influence? |
1. Susceptibility (weakness) 2. Opportunity 3. Active participation (or "disposition") for influence 4. Unnatural result |
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What is the case law presumption of undue influence? |
1. Confidential relationship 2. Active participation 3. Unnatural result |
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What are consequences of prima facie/common law undue influence? |
1. Only affected part of will is invalid 2. Affect part goes to residue, heirs at law; or via constructive trust |
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What is statutory presumption of undue influence? |
Any provision of an instrument making a donative transfer to: 1. Person who drafted 2. Care custodian to a dependent adult 3. Spouse, partner, relative, cohabitant, or employee of above |
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What exceptions apply to statutory presumption of undue influence? |
1. Donative transfer to spouse, domestic partner, cohabitant, blood relative 2. Instrument drafted by above 3. Instrument reviewed by independent attorney 4. Transfer <$5000, estate of >$100,000 |
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What is consequence of statutory undue influence? |
Gift lapses, transferee doesn't take. Passes to reside, or heirs at law. |
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What are the five types of mistake? |
Content, execution, description (ambiguity), validity of subsequent testamentary instrument, living children (pretermission) |
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What is a mistake in content? |
Names wrong beneficiary or makes wrong gift due to accidental omission / addition |
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When may the court reform a mistake in content? |
Clear and convincing evidence establishes 1. Will contains a mistake in expression of intent at time will was drafted 2. Testator's actual specific intent at time will was drafted |
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What is a mistake in description? |
No one or nothing fits description, or two things fits description. |
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What is the consequence of latent ambiguity in will? |
Introduce parol evidence of ambiguity, introduce parol evidence to clarify ambiguity |
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What is the consequence of patent ambiguity in will? |
Old cases: no remedy New cases: parol evidence to determine intent |
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What is dependent relative revocation? |
A court's disregard for a revocation caused by mistake |
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How can wills be revoked? |
Physical act, or subsequent will |
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What is the rule of dependent relative revocation? |
1. If testator revoked will, or portion 2. In mistaken belief that identical will or codicil effectuates intent 3. then by operation of law, 4. Revocation of first is conditional, dependent, and relative of second 5. If the second does not effectuate intent, first was never revoked |
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When is a child pretermitted? |
Born or adopted after all testamentary instruments executed, and not provided for |
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How is an integration determined? |
Intent: intent for papers in question to be part of will Presence: papers must have been present at time of execution [stapling + words make sense together] |
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What is incorporation by reference? |
Non-integrated writing becomes part of will |
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What are elements of incorporation by reference? |
1. Document or writing 2. Document in existence when will existed 3. Document clearly identified in will 4. Testator have intended to incorporate document 4 is inferred after 1-2 |
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What is a fact of independent significance? |
Normally, can't use parol evidence. However, can use fact of independent significance if trustworthy "Even without the will, would this fact have existed?" |
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What is a "Writing Disposing of Limited Tangible Personal Property"? |
1. Writing referred to in will, dated, signed or handwritten (or other evidence of intent) 2. Describing items and recipients with certainty 3. Executed before or after will 4. Writing directs disposition of non-cash personal property <$5000 per item, <$25,000 in aggregate |
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What is a pour-over will? |
Part or all of testator's estate is devised to the trustee of the inter-vivos trust, to be administered pursuant to those terms. |
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How can one incorporate a trust instrument pour-over will? |
1. Incorporate by reference 2. Independent significance 3. Uniform Testamentary Additions to Trusts Act (UTATA) |
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What are elements (traditional formalities) for an attested will? |
1. In writing 2. Signed by one of: testator, third person in direction of testator and in presence, by a conservator via court order 3. Signing by [above] done with two witnesses, present at same time 4. Witnesses sign during T's lifetime 5. Witnesses understand instrument is T's will |
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What is an interested witness? |
A witness who is a beneficiary under the will |
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What is the consequence of an interested witness? |
Presumption of acquisition by wrongdoing, must be overcome by interested witness. If not rebutted, witness can't get more than what would have gotten in intestacy. |
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What are elements of valid holographic will? |
1. Must be signed by testator 2. Material provisions must be testator's own handwriting |
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How must a court interpret a holographic document just listing names and assets? |
Use extrinsic evidence to determine if it's a will (testamentary intent) |
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When may a will be admitted into probate when executed outside California? |
1. If complies with formalities of California 2. Complies with law of place where will executed 3. Complies with law of place where testator's domicile during execution |
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What is a codicil? |
Testamentary instrument executed in compliance with CA Probate Code, which modifies, amends, or revokes a will. |
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How must one revoke a will by physical act? |
1. Burned, torn, cancelled, destroyed, or obliterated will 2. Simultaneous act/intent 3. Act done by testator or someone with T's authority in presence |
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Can a co-beneficiary increase gift by cancellation? |
No. Goes to residue, or intestacy. |
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What if mutilated will found at testator's death, and last seen in testator's possession? |
Presumed to be mutilated with intent to revoke. |
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If Will #1 is revoked by Will #2, and Will #2 is revoked, is Will #1 revived? |
Not automatically. Requires evidence of intent to revive #1. |
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What does an omitted child receive? |
Share equal in value to that which the child would have received if decedent had died without ever executing any instrument |
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What are exceptions to the omitted child's share? |
1. Intentional omission 2. Has children, but substantially all of estate goes to parent of omitted child 3. Provided for child outside of instruments |
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What are exceptions to the omitted spouse's share? |
1. Intentional omission 2. Provided for spouse outside of instrument 3. Spouse signed waiver |
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What are the elements of waiver? |
1. In writing, signed by waiving spouse before or during marriage 2. Full disclosure of finances 3. Independent counsel by waiving spouse |
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What is ademption by extinction? |
Testator didn't own specific property at death, so gift might fail (exitinguished). Look to intent for gift to fail |
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When is a gift not adeemed by extinction? |
1. Securities changing form 2. Conservator sells assets 3. Eminent domain award, insurance, installments paid on land, if paid before T's death. Trace proceeds. |
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What is an ademption by satisfaction? |
Testator gives beneficiary intervivos down payment on devise. |
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How may be a satisfaction be established? |
1. Will provides for deduction; or 2. T declares in contemporaneous writing that gift is satisfaction; or 3. Beneficiary acknowledges in writing of the satisfaction; or 4. Property given in satisfaction is same property subject to a specific gift. |
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What is an advancement? |
Intervivos down payment made by an intestate to an heir apparent |
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How is an advancement established? |
1. Intestate declares in writing gift is advancement 2. Heir acknowledges in writing that gift is advancement |
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How does an advancement differ from satisfaction? |
1. Advancement comes from intestacy; satisfaction, from will 2. If recipient dies before grantor, issue does not get credited with advancement, but issue gets credited with satisfaction |
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How can one make a contract not to revoke (or make) a will? |
1. Will says so (gift is given immediately) 2. Will references such contract (use extrinsic evidence) 3. There's a writing evidencing a contract, signed by decedent 4. Estoppel by first party agreement 5. Estoppel by third party agreement |
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What are remedies for breach of contract to make (or revoke) a will? |
Damages, specific performance, or constructive trust remedy |
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What are four rules protecting property of surviving spouse or domestic partner? |
1. Testator can only dispose of 1/2 of community property 2. Testator can dispose of only 1/2 of quasi community property 3. Widow's election (to choose the will or the 1/2 CP interest) to take under or take against the will 4. Inter vivos transfer of QCP by acquiring spouse without consideration is allowable, unless illusory. |
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What happens to community property and quasi community property at intestate succession? |
Goes to spouse, so spouse owns 100% |
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At intestate, what is the split if: 1. No issue, parents, siblings, or issue of siblings 2. 1 child, or issue of child 3. 2 or more children, or issue 4. No issue, but parents, siblings |
1. All to Spouse 2. 1/2 to child, 1/2 to spouse 3. 2/3 split among children, 1/3 to spouse 4. 1/2 to parents/siblings, 1/2 to spouse |
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What is the order of priority in intestate scheme? |
1. Issue 2. Parents 3. Issue of Parents 4. Grandparents 5. Issue of Grandparents 6. Issue of predeceased spouse 7. Next of kin 8. Parents of predeceased spouse 9. Issue of parents of predeceased spouse 10. Escheat |
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How do issue take by intestacy? |
1. Issue of same degree take per capita 2. Issue of more remote degree take per capita with representation 3. |
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What is distribution "per stirpes"? |
Distribution to first level, even if they all are dead. Distribute to any surviving issue. |
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When is the relationship to the natural parent not severed by adopted child? |
1. Death of parents 2. Adoption by spouse or domestic partner of natural parents |
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When can a stepchild or foster child be treated as adopted? |
1. Relationship began during minority 2. Continued through lifetimes 3. Clear and convincing evidence that would have been adopted, but for legal barrier |
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What is the Rule of Lapse? |
If a beneficiary dies before testator, gift fails (goes to residue / co-residuary devisees / intestacy) |
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What is the Anti-Lapse Statute? |
Issue of predeceased steps into shoes of predeceased. |
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What is the Uniform Simultaneous Death Act? |
If it can't be established by clear and convincing evidence that one survived the other, it is deemed that the devisee did not survive the testator |
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When does the Anti-Lapse Statute apply? |
When predeceased devisee was "kindred" i.e. blood relative, or kindred of spouse, and predeceased left issue |
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What is the 120 hour rule? |
Under simultaneous death, heir to intestate must survive intestate by 120 hours to take (by clear and convincing evidence) |
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Does a beneficiary earn increases (stock dividends, rents, interest) during probate? |
1. Specific devise: yes 2. General devise: no |
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What is abatement? |
Process by which certain gifts are decreased |
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What is the order of abatement to pay off genera debts? |
1. Intestate 2. Residual gifts 3. General gifts to non-relatives 4. General gifts to relatives 5. Specific gifts to non-relatives 6. Specific gifts to relatives |
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What is exoneration? |
Debt is extinguished. No automatic exoneration, unless specific intent. |
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What is constructive delivery of a gift causa mortis? |
Common law: Donee is given key to corpus which is too big and bulky Modern: Whenever donor has done everything possible to effectuate delivery, and no issue of fraud or mistake |
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What is a private express trust? |
Fiduciary relationship with respect for property whereby one person, the trustee, holds legal title for benefit of another, the beneficiary, and arises out of intent to create it for legal purpose |
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Is parol evidence admissible to determine creation of trust? |
Yes. |
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How can a trust be created during lifetime? |
1. Transfer in Trust (third party trustee) 2. Declaration in Trust (settlor is trustee) |
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What happens which a trust becomes illegal after creation? |
Resulting trust is decreed |
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What are the elements to creation of a private express trust? |
1. Property 2. Beneficiary 3. Trustee 4. Manifestation of Intent 5. Creation 6. Legal Purpose |
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What is an honorary trust? |
Trust which has no ascertainable beneficiary and confers no substantial benefit upon society |
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What is a Totten trust? |
Named beneficiary takes whatever is left in bank account when owner dies (no fiduciary duty) |
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What is a spendthrift trust? |
Beneficiary cannot transfer right to future payments of income or principle, and creditors cannot attach right to future payments |
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Who are preferred creditors who may attach future interests in spendthrift trusts? |
1. Government 2. Those who provide necessities of life to beneficiary 3. Child for child support 4. Spouse for spousal support 5. Ex spouse for alimony 6. Tort judgment creditor |
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What is a support trust? |
Trustee is required to use only so much of the income or principle as is necessary for the beneficiary's health, support, maintenance, or education |
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What is a discretionary trust? |
Trustee is given sole and absolute discretion in determining how much to pay the beneficiary, if anything and when to pay beneficiary, if ever |
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What is a resulting trust? |
Implied in fact trust, based upon the presumed intent of the parties. Can be decreed by court. Property transfers to settlor/estate. |
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What are the seven typical ways in which a resulting trust arises? |
1. Private express trust ends on its own terms, no provision for corpus. 2. Private express trust fails with no beneficiary 3. Charitable trust ends, no Cy Pres 4. Private express trust becomes illegal 5. Excess corpus in private express trust 6. Purchase money resulting trust 7. Semi-secret trust |
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How can a constructive trust arise? |
1. Trustee makes a profit because of self-dealing 2. Fraud in inducement or undue influence in law of wills 3. Secret trusts 4. Oral real estate trusts (Breach of Promise) |
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What is a secret trust? |
Will on its face makes a gift outright to A, but gift is given on basis of oral promise to use property for benefit of third party. Can use parol evidence. |
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What powers does a trustee have? |
1. All enumerated powers 2. Power to sell trust property 3. Power to incur expenses 4. Power to lease 5. Power to borrow |
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What are the duties owed by a trustee? |
1. Loyalty (no self-dealing) 2. Invest 3. Earmark (label) 4. Segregate 5. Not to delegate (modern: except to mutual fund managers) 6. Account (income + expenses) 7. Due Care (reasonably prudent person, with own property) |
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What are the three authorities on what constitutes duty to invest? |
1. State lists (enumerated) 2. Common law (reasonably prudent person, investing own property) 3. Uniform Prudent Investor Act (prudent investor) |
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What are two approaches to trustee liability (under contract + tort)? |
CL: trustee is personally liable (unless contract says suit in representative capacity) Can get indemnification. Modern: if counterparty knows representative capacity, sued in representative capacity, or if personally at fault in tort |
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What is the test to allow court to modify a trust? |
1. Unforeseen circumstances 2. Necessity |
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When is a trust revocable? |
Majority: if expressly reserved Minority: always, unless expressly made irrevocable |
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How can an irrevocable trust be terminated? |
1. Settlor + all benes (including remaindermen) agree 2. All benes agree to terminate and all material purposes have been accomplished 3. By operation of law (passive trust or Statute of Uses) |
