Wills - Ca

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WHAT LAW APPLIES (conflict of laws)
Under CA law, an out-of-state will is valid (& can be probated in CA) if executed in accordance w/:

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1) CA law, OR
2) The law of the state where the will was executed, OR
3) The law of the place where T was domiciled at the time of execution or death.

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IS THERE A VALID WILL?

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“Coke Is Fine”
1) Capacity;
2) Testamentary Intent;
3) Formalities

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Testamentary CAPACITY & Testamentary INTENT - T must have capacity to make the will at time of Execution and satisfy 4 elements:

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At the time of execution, T must satisfy 4 elements:
1. must be at least 18 years of age
2. must be able to understand extent of property
3. must know the natural objects of her bounty.
4. T must know the nature of her act – that she’s executing a will, but does not have to know the legal technicalities of the will

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FORMALITIES of execution for ATTESTED / FORMAL Wills:

("In CA, the witnesses do not have to sign in the presence of each other, the presence of T, the T does not have to declare “THIS IS MY WILL” b/c CA does not have a publication requirement.")

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4 elements - Will must be:
1) In writing (oral wills not recognized in CA)
2) Signed by one of the three people: T, 3rd person in T’s presence & at T’s direction, or Conservator pursuant to court order
3) Signing must be done in the PRESENCE of 2 Ws, both present at the same time.
4) Ws must sign the will during T’s lifetime.
5) Ws understand that the instrument they sign is T’s will.

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Interested Witnesses Problem: Witness who is Beneficiary under the will (excludes trustees). Consequences:

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Will is NOT invalid BUT rebuttable presumption that W secured gift by wrong unless 2 other disinterested Ws there.
If not rebutted then W takes amount that he’d get by intestacy.

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FORMALITIES of execution of HOLOGRAPHIC (handwritten) Wills:

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2 elements: Will must be:
1) Signed by T;
2) Material Provisions must be in Ts handwriting (gifts made & Bs named)

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DEFENSES to will formation - 4 Types:

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1) Insane Delusion
2) Fraud
3) Undue influence
4) Mistake

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Will can be attacked if at the time of execution T was suffering from an INSANE DELUSION.

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If at time of execution T:
1) T had false belief;
2) Belief was product of sick mind;
3) No evidence to support the belief;
4) Delusion affected Ts will.
- Consequences: Only part of will affected by insane delusion is invalid (affected part goes to residuary devisee)

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Fraud - Elements:

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4 elements:
1) Representation of Material Fact;
2) Known to be false by wrongdoer;
3) For purpose of inducing action/inaction;
4) In fact induces action/inaction.

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Fraud - Consequences:

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1) Fraud in Execution-T doesn’t know he is signing will, thinks it is some other document-Entire Will Invalid;
2) Fraud in Inducement-wrongdoer’s misrepresentation affects content of T’s will-Only part of will affected by the fraud is invalid &: a) the invalid part property goes to residuary devisees; b) if none goes to heirs at law by intestate succession; or c) Constructive Trust-property goes to residuary devisees or heirs to transfer to the intended beneficiary;
3) Fraud in Preventing T from Revoking (T changes mind)-Court won’t probate will so all property goes to heirs

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Undue Influence (T’s free agency is subjugated) - 3 Types:

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“PPS”
- Prima Facie
- Presumption
- Statutory

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Prima Facie Case for Undue Influence - 4 Elements:

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“SO AU”
a) Susceptibility- T has weakness that allows his free will to be subjugated (mental. physical, financial);
b) Opportunity- wrongdoer had access to T;
c) Active Participation- wrongdoer’s wrong act gets the gift;
d) Unnatural result- normally wrongdoer wouldn’t be expected to get anything under the will but he does.
- Consequences: Part of will affected by undue influence is invalid

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Presumption of Undue Influence - 3 Elements:

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“C AU”
a) Confidential relationship b/w T & wrongdoer- i) Attorney-Client; ii) Doctor-patient; iii) Guardian-ward; d) Clergy person-penitent; iv) Trustee-beneficiary; v) Other confidential relationship like friends;
b) Active Participation- wrongdoer’s act gets the gift;
c) Unnatural result- wrongdoer wouldn’t be expected normally to take under the will;
- Consequences: Part of will affected by undue influence is invalid

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Statutory Undue Influence

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CA law invalidates a will when:
a) person who drafted the instrument;
b) is in a close relationship with draftor;
c) fiduciary of T and gets instrument transcribed;
d) Care custodian of dependent adult T.
- Consequences- gift not given to transferee in amount it exceeds that person’s intestate share, and remains go to residuary devisee, intestate succession, or constructive trust
- Rules don’t apply if T related to, married, dp, lives with T; Instrument reviewed by independent counsel for T; Court finds clear and convincing evidence that transfer is not product of wrongdoing

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Mistake - wrong beneficiary named or wrong gift given

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1) Mistake in Omission: words accidentally left out. Result: NO remedy, left out person not added because courts don’t rewrite wills.
2) Mistake in Addition: Words accidentally added. Result: remedied, court may strike out extra name (excise it).
3) Mistake in Execution: T signs the wrong document: a) T believes the will thinking it is not a testamentary document. Result: Will not valid b/c T lacked intent; b) Reciprocal wills-2 Ts both has will and leave everything to each other, and each accidentally signs the others will. Result: ct reforms it to the Ts intent, especially if Ts were married or domestic partners.
4) Mistake in Inducement: Gift made or not made based on Ts erroneous beliefs. Result: No relief, except if the mistake & what T would have done but for the mistake is on face of the will.
5) Mistake in Description: nothing/nobody fits description in will, or 2 things/people fit description. Result: Use parol evidence to show Ts intent, whether latent (on the face of the will there’s no problem) or patent (ambiguity on face of will).

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Mistaken Validity of Subsequent Written Instrument (Dependent Relative Revocation) "DRR"
- Scenario: T makes Will 1. Then T makes Will 2 & revokes Will 1, b/c T believes Will 2 is valid and shows his intent. But Will 2 invalid or doesn’t effectuate Ts intent.

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Allows ct to disregard a revocation caused by mistake. DRR lets court ignore revocation of Will 1 b/c T was mistaken that Will 2 effectuated intent. ** Wills must be SUBSTANTIALLY SIMILAR (Ct looks to consistency of documents & may consider consequences of not applying DRR)
1) T revokes all or part of will; 2) T mistakenly believes that substantially similar will/codicil effectuates intent; 3) By DRR then if the 2nd will doesn’t effectuate intent the 1st will is considered VALID (never revoked).

- DRR NOT APPLIED when subsequent instrument revoking will & making alternative disposition is defectively executed.

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Integration: refers to which documents make up the will
- 2 elements required:

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1) T must have INTENDED for the papers in Q to be a part of the will, &
2) PRESENCE: the paper must have been actually or physically present at the time of execution.

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Incorporation by Reference: Nonintegrated writing is given testamentary effect & becomes a part of the will. Elements (4):

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1) Document/writing;
2) doc/writing was in existence when Will executed;
3) Doc. clearly identified in Will;
4) T intended to incorporate doc. into will (implied by court if 1-3 satisfied);
- Applies even if doc. referred to is not valid

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Facts of Independent Significance: permits court to fill in certain blanks to T’s will with parol evidence that is trustworthy (referring to docs/acts effectuated during T's lifetime for non-T motives).
- Key Issue: Facts must be significant APART FROM T's will to give meaning to who B is or what is given.

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1) Ask even w/o will would this fact exist? If yes - Can use parol evidence to prove who/what in the will;
2) Can be future or past act/fact;
3) Must have independent significance- can’t be something created for the will (eg can’t be I leave gift to people on note I will write tomorrow)

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CA Probate Code: Writing Disposing of Limited Tangible Personal Property

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Death after Jan. 2007- writing not incorporated by reference or independent significance admissible if:
+ referred to in will
+ describes items & beneficiaries w/ substantial certainty
+ disposes of personal property only worth $5K per item ($25K total)

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Pour Over Wills: Will substitute. “I put all/part of my estate into (intervivos) trust”. 3 ways to validate:

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1) Incorporation by writing- trust instrument- writing in existence when will executed; trust clearly identified in the will; T intended to incorporate the trust instrument into the will; pour over provision validated.
2) Independent significance- despite will, intervivos trust would still be; trust instrument is fact of signif. ind. from will; (can USE when trust is modified AFTER will)
3) UTATA- if valid trust existed before or when will executed, pour over provision is valid by statute USE when trust is modified AFTER will)

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HAS THE WILL BEEN AMENDED, REPUBLISHED, REVOKED & DOES DRR APPLY?

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1) Republishing (Codicils)
2) Revocation by Physical Act
3) Revocation By Subsequent Written Instrument
4) Revocation By Operation Of Law
5) Revocation by Ademption (Change in Property Holdings)
6) Revival
7) DRR (revival of the 1st will)

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REPUBLISHING - A codicil republishes a will. It causes the will to speak from the date that the codicil is executed on.

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Codicils: testamentary instrument modifies, amends, or revokes will.
1) Pour-Over Wills & Incorporation By Reference- if will refers to a document, that doc must have been in existence when will executed, & not just created for the will. But if Will refers to doc that didn’t exist before the will, & codicil comes after both, that doc is incorporated by reference since codicil republishes will to the date of codicil;
2) Pretermission- if codicil after child is born then no recovery bc i) codicil publishes will & ii) codicil itself is testamentary instrument
(discuss both always)

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REVOCATION by Physical Act - Elements:

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1) Will must be burned, torn, canceled, destroyed, or obliterated. Cancellation = crossing off, obliteration = erasing;
2) T must have simultaneous Intent to Revoke- act & intent must happen at same time;
3) Act must be done by T or someone in T’s presence or at his direction (see formalities)

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REVOCATION By Subsequent Written Instrument:
("A will may be revoked by executing a subsequent will, coupled with an intent to revoke the prior will.")

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1) Express Revocation: Will 2 can expressly revoke Will 1;
2) Implied Revocation: Will #2 revokes #1 by implication if Will #2 totally disposes of T’s estate(nothing left for Will 1 to do )

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REVIVAL - 2 situations in which revival can arise:

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#1: Revocation by physical act: 1) Will 2 revokes Will 1. Then T revokes Will 2 by physical act. Result- Will 1 revived only if T shows intent to revive Will 1 (can admit oral statements made when Will 2 revokes;)
#2: Revocation by subsequent written instrument: 1) T makes Will 1. T makes Will 2 that revokes Will 1. T revokes Will 2 by codicil. Will 1 revived only if codicil terms show T wanted Will 1 revived.

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DRR (Dependent Relative Revocation) -revival of the 1st will

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see above in mistake

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Revocation By Operation Of Law
- Omitted Child/Pretermitted Child:

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= A child born or adopted after all testamentary instruments are executed & not provided for in any TI.
- Child receives share of Ts estate he’d be entitled to if T dies intestate plus that share of assets in intervivos trust. This reduces gifts to others.
- Exceptions: a) Intentional: If T intentionally doesn’t provide for any child in TI, & instrument shows such intention;
b) At the time of execution of the TI, decedent had one or more children & gave all the property to parent.
c) Decedent provided for the child by transfer outside the TI with the intention that it be in lieu of any instrument.

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Revocation By Operation Of Law
- Omitted Spouse or Domestic Partners:

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= A surviving spouse who married the decedent after the execution of all TIs & is not provided for in any TIs.
- Spouse receives a statutory share of decedent’s estate = to what would have received had decedent not executed any TI. PLUS spouse receives assets held in any in intervivos trust. This statutory share is as follows:
1. 1/2 of the CP, so 100% of CP.
2. 1/2 of QCP, so 100% of QCP.
3. Share of SP of the decedent. Share cannot be more than 1/2 the value of estate.
- Exceptions: omitted spouse won’t take if: 1) T intentionally left spouse out TI & intention is in will; 2) provided for outside TI w/intention that it be in lieu of taking under such instrument; 3) Omitted spouse signs Written, Signed Waiver before or during marriage, full disclosure of Ts finances, & waiving spouse represented by independent counsel - a) but if spouse should have known of Ts finances & waiver is fair then waiver is valid; b) no unconscionable waivers enforced.

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Rules for omitted domestic partners same as omitted spouse. Domestic Partner requirements:

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i. Partners must be of the same sex or opposite sex & at least one person is at least 62 years of age, &
ii. The partners must have filed a declaration of domestic partnership with the secretary of state.

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Revocation by operation of law - Final Dissolution of Marriage or Domestic Partnership:

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1) If will expressly states otherwise these rules don’t apply;
2) Revocation if- annulment, final dissolution of marriage or termination of domestic partnership;
3) Legal separation does NOT count;
4) If remarry same spouse or reinstate domestic partnership then devise reinstated if will unchanged

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REVOCATION BY ADEMPTION (failure) (Change in Property Holdings): 4 types of gifts:

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1) SPECIFIC DEVISE- gift of particular item, unique from all other objects in T's estate, intent that B take this & nothing else (real estate & antique always specific);
2) GENERAL DEVISE- gift of general economic benefit, payable out of general assets of estate (may give its FMV);
3) DEMONSTRATIVE DEVISE- hybrid b/w general & specific gift- if not enough from specific fund can be paid out of general;
4) RESIDUARY DEVISE- remainder of T's property after satisfying all other gifts, not expressly disposed of in will (sometimes say balance or residue)

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Types of Ademption:
- Ademption by Extinction
(only SPECIFIC GIFTS adeem by extinction: fail b/c T did not own the property at T’s death)

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In CA, intent is important in determining whether the gift was general or specific & ALSO important for determining whether the T intended the gift to fail.
- No ademption by extinction if T didn’t intend gift to fail and: a) securities (stocks) changed form; b) conservator sells the assets; c) awards-eminent domain, insurance, or installment payments-try to trace

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Types of Ademption:
Ademption by Satisfaction
(T gives the beneficiary an intervivos down payment on a devise)
(only GENERAL GIFTS adeem by satisfaction) - 4 ways:

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1) Will provides for deduction of inter vivos gift;
2) T declares in contemporaneous writing that will is satisfaction;
3) Beneficiary in writing, at any time acknowledges satisfaction;
4) property given in satisfaction is same property that was specific gift to the beneficiary- ademption by satisfaction & extinction;
- If B gets satisfaction but dies before T- anti-lapse-if Bs issue take gift then they are treated as is they have gotten the satisfaction (unless will/contemporaneous writing says otherwise);
6) If not cash gift then fair market value unless will says otherwise

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Advancement - Person dies without a will (intestate). Works same as Ademption by satisfaction

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Is intervivos down payment paid by intestate to heir apparent: 1) if intestate says in contemporaneous writing that gift is advancement; 2) or heir acknowledges in writing that gift is advancement; 3) Difference from Ademption by Satisfaction- if heir apparent predeceases intestate person, then his heirs are not treated like they got the advancement unless otherwise indicated; 4) Value if not cash given is what is said in contemporaneous writing or fair market value when heir possessed property

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RULES OF CONSTRUCTION -
Lapse and Anti-Lapse (for a beneficiary to take, B must survive the T)

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1) Rule of Lapse: if beneficiary dies before T then B doesn’t take, gift lapses;
2) CA's Anti-Lapse Statute: applies if devisee who predeceased T was KINDRED (blood relative of T). Deceased devisee's share goes to her descendants/issue, unless devisee's death occurred before will was executed.
- Simultaneous Death: If can’t tell by clear & convincing evidence if B or T died first because at same time, then presumed that B died before T (so lapse or anti-lapse applies)

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Remember default: PER CAPITA REPRESENTATION - Whenever issue take by intestacy or if a will or trust provides for issue to take w/o specifying the manner, they take in this manner:

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Issue of same degree take with same degree per capita (equally), means first level with living person takes equally; then the issue of deceased split the deceased’s share
- Per capita with representation - make distribution at first level even if they are all dead

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ABATEMENT (process by which certain gifts are decreased; arises when it is necessary to pay for the share of the omitted child or omitted spouse or omitted DP -- must decrease other devisees' gifts to award the pretermitted person)
- ORDER TO ABATE:

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a) Abate intestate property (not passed by will or revocable intervivos trust);
b) abate from all beneficiaries of Ts will and revocable inter vivos trust equally & in proportion;
c) Exception: specific gifts can be exempt from abatement by court if it would defeat T's OBVIOUS INTENTION.
- Note that the order of abatement for omitted children, spouses, & DPs is NOT the order of abatement to pay off GENERAL debts of the decedent. To Pay off of gen debts, order is: a) Intestate property; b) residuary gits; c) general gifts to non relatives; d) gen gifts to relativesl e) specific gifts to non relatives; f) specific gifts to relatives

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Exoneration:

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CA: No automatic exoneration (debt extinguishment); devisee takes specific gift subject to encumbrance, unless T’s will states exoneration

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WILL SUBSITUTE:
Gifts Causa Mortis (gift made in contemplation of imminent death (personal property only, no gifts of real property)) - Elements:

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1) only personal property;
2) donor must make deliver to donee as- a) actual; b) symbolic-like writing showing ownership; c) constructive-if donor did everything possible to effectuate delivery;
3) If donor lives then gift revoked

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WILL SUBSITUTE:
Testamentary Trust: A will that creates a trust (that is not inter vivos)
Requirements for creating a trust:

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1) Intent by Settlor for valid purpose;
2) Beneficiary;
3) Trustee; Corpus; Legal Purpose

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Bars to Succession: Homicide

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- A person who feloniously & intentionally kills decedent
- Person & his issue are NOT entitled to any benefit from D's estate by will, trust, intestacy, life insurance, JT, or otherwise.
- Person is deemed to have predeceased the decedent & the anti-lapse statute does not apply.